Legislature(2021 - 2022)GRUENBERG 120
03/27/2021 01:00 PM House STATE AFFAIRS
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HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT" 1:09:20 PM CHAIR KREISS-TOMKINS announced that the first order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the code of military justice; relating to consent; relating to the testing of sexual assault examination kits; and providing for an effective date." 1:09:34 PM REPRESENTATIVE GERAN TARR, Alaska State Legislature, prime sponsor, introduced HB 5 with a PowerPoint presentation, titled "House Bill 5: Defining Sexual Consent" [included in the committee packet]. She began on slide 2, titled "How was HB 5 drafted?" She explained that the issue was brought to her attention by Standing Together Against Rape (STAR), an organization that knew firsthand how the law has failed to achieve justice for Alaskans who had been raped or sexually assaulted. She noted that the law in question has not been updated in forty years. The legislation before the committee today is the culmination of a two-year process involving statewide meetings with input from across Alaska, expert interviews, and feedback from the Department of Law (DOL), which is reflected in the sponsor substitute (SS) changes. She discussed her presentation at the statewide meeting for the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), highlighting the significance of receiving their feedback. She continued to slide 3 and emphasized the importance of doing "more listening than talking." She said she wanted to understand what's happening in Alaskan communities; how people are feeling safe or unsafe; and how this law impacts that safety. 1:13:07 PM REPRESENTATIVE TARR turned to slides 4 and 5, which questioned "Has consent ever been [an] issue for you?" She stated that every individual at all the forums she hosted or participated in were asked that question and all, without exception, answered yes. She moved to slide 6 and addressed consent, noting that it is not defined in Alaska statute. Instead, AS 11.41.470(8) defines "Without consent" as follows: (8) "without consent" means that a person (A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone; or (B) is incapacitated as a result of an act of the defendant. REPRESENTATIVE TARR relayed that this explanation is problematic for several reasons: firstly, it is not an affirmative definition; secondly, it suggests a use of force; and thirdly, it places the burden on the victim. She continued to slides 7 and 8 and reviewed Minnesota and Montana's statutory definitions of consent, both of which make reference to the phrases: words or overt actions, freely given arrangement/agreement, and current/prior social or sexual relationship. Slide 9 highlighted themes in modernized statutes, including an affirmative definition that contains the following words: freely given, agreement, reversible, and words/actions. She turned to slide 10 and presented the new definition proposed in HB 5, which read: "Consent" means a freely given, reversible agreement specific to the conduct at issue; in this paragraph, "freely given" means agreement to cooperate in the act was positively expressed by words or action. REPRESENTATIVE TARR noted that the definition of "freely given" is one difference in the sponsor substitute from the original version of the bill at the recommendation of DOL. 1:17:17 PM REPRESENTATIVE TARR directed attention to slides 11 and 12 and provided a sectional analysis of the bill, which read as follows: Sections 1 and 2: Rape by Fraud Sections 3 and 4: Predatory behavior by much older adults engaging in sexual relationships with teenagers at least ten years younger Section 5: Addressing circumstances in which consent can be given Section 6: New definition of consent Sections 7 and 8: Updates the definition of consent Section 9 refers to the updated Military Code of Justice Section 10: Requires rape kits be tested within six months Section 11: Repeals the old definitions Section 12: Law applies to crimes committed after the effective date Section 13: Effective date for rape kit testing is July 1, 2023 REPRESENTATIVE TARR explained that Sections 1 and 2 add a new crime, "rape by fraud," into statute. Rape by fraud suggests that a person commits sexual assault by pretending to be someone else. Sections 3 and 4 amend the sexual abuse of a minor statute. She noted that currently, Alaska law does not differentiate between a 16-year-old and someone who is 22 or 30 years of age. Section 5 addresses the circumstances in which consent can be given. She pointed out that the sponsor substitute includes changes from the previous version, such that "rape by fraud" language is removed and "professional purpose" is defined on page 5, lines 8-15, to Section 5, paragraph (2), for clarity at the recommendation of DOL. She noted that Section 5, paragraph (3), addresses freezing - a common trauma response. Sections 7, 8, and 9 are conforming language, as it relates to the consent definition. She read the summary of Sections 10-13 and noted that Section 13 accommodates more time for the effective date for rape kit testing at the recommendation of the crime lab. 1:24:00 PM REPRESENTATIVE TARR continued to slide 13 and outlined the desired outcomes: firstly, to remove dangerous people from Alaska's communities to prevent them from harming others; secondly, to educate Alaskans about consent to prevent harm from happening. She turned to slide 14 and conveyed that HB 5 is the solution. She detailed a February 10, 2020 KNOM article that explored "[changing] the law to make prosecution for rape more possible." The article referenced the law under consideration in today's meeting and read: Some said an outdated statute dealing with consent ensures most sexual assault cases won't result in convictions. Advocates and survivors say it's time for some of those laws to change. 1:25:33 PM REPRESENTATIVE TARR moved to slide 16 and concluded by posing the following questions: What is the appropriate criminal justice system response based on the human suffering caused to the survivor? How much of a danger does this person pose to the community and how long should they be removed from the community so they can no longer cause harm? How much do we want to invest to improve public safety and reduce sexual assault in Alaska? 1:26:14 PM CHAIR KREISS-TOMKINS opened invited testimony. 1:26:38 PM LISA ELLANNA, a survivor herself, informed the committee of her experience as an advocate for survivors of sexual assault. She recalled that when survivors gathered to provide support for one another, it became clear that none of their cases were investigated by the local police department. The group proceeded to insert themselves in positions on commissions and boards to spark the conversation around improving the police department's investigation and training efforts. She explained that over the course of several years, they encountered heavy resistance from the police department. The group decided to take a different approach and bring the issue to a public forum before the city council, which prompted a cascade of events: 460 cases of sexual assault were revealed, which had been reported to the police department over the course of decades and went uninvestigated; the chief of police left the force; and the city manager resigned. She added that they also began to take a community approach to the issue and in the process, realized that Alaska's consent laws are inadequate. She pointed out that over 90 percent of reported cases did not lead to a conviction. She acknowledged that the issue is a difficult one. When an individual tells someone that he/she was a victim of sexual assault it is often reported to law enforcement, which - if the system is responsive - inserts the victim into a legal process that is retraumatizing. She explained that there are fears associated with reporting [sexual assault] and a lot of weight is placed on the victim's decision, so rates of reporting are most likely low. In closing, she stated that this bill needs to pass. She said it provides context for police to understand consent and investigate, as well as a mechanism for district attorneys to provide tools to hold perpetrators accountable. 1:31:10 PM DARLENE TRIGG informed the committee that she is a community advocate [for sexual assault] in Nome. She contextualized the importance of this legislation by explaining what it's like for women to live in a state that's not safe for them. She conveyed that victims had lost faith in the police force and criminal justice system, adding that many victims were assaulted more than once, which leads to victims saying, "why tell police when they're not going to do anything anyway." As a result, in Nome in particular, the current state of affairs is so poor that victims are often hospitalized for suicide attempts and other self-destructive coping mechanisms. She said she acknowledges that living with the current laws creates a culture of safety for perpetrators. She shared her belief that women do not know what it is to be safe because they need to put up walls and always be aware, which holds them back from being productive and safe community members. 1:33:59 PM KEELY OLSON, Executive Director, Standing Together Against Rape (STAR) Alaska, stated that in 2018, STAR's board of directors formed a policy committee to help educate and inform lawmakers about existing challenges in the sexual assault statutes informed by the lived experiences of survivors. One such policy priority included updating the state's definition of consent. Given that Alaska has the highest rates of rape in the nation, she said, it seems logical to provide law enforcement and prosecutors with more tools to effectively prosecute rape. She explained that the state's current definition of "without consent" places the burden on the victim to prove that force or threats were used; further, it requires the state to try and prove the victim was incapacitated to the point of being unable to consent. She pointed out that in practice, this is a very high burden that leads jurors to expect the victim to have sustained significant and visible injury, which is often not the case. A growing understanding of trauma response indicates that a victim often freezes rather than fighting or fleeing. She noted that the statute does not account for a victim crying throughout the assault and not fighting back. She relayed STAR's additional policy priorities, including urging the state to do more to protect minors - ages 16 and 17 - from targeted victimization. She reported that under questioning, offenders often tell the police that "16-year-olds are fair game," suggesting that they are legal, and maintaining that [the victim] consented, which places the burden of proof on law enforcement. These cases often involve the offender proffering teens with alcohol and drugs to render them incapable of escape and less likely to report for fear of not being believed or, in some cases, being charged with underaged drinking when they do report. She said STAR receives numerous calls on its statewide sexual assault crisis line from parents seeking support and ways to help their teens who were manipulated into a relationship with a much older adult. In such cases, the parents are often powerless to order the adult to stay away from their child. She pointed out that impressionable youth are often led to believe by a predatory adult that they are mature and special, which drives a wedge between them and their family support. In Alaska, the state only protects teens from adult predatory behavior if the adult holds a position of authority over the child. She shared her belief that the state should be doing more to protect its youth particularly during formative years rather than treating them as grown adults. MS. OLSON detailed several cases that involved the use of trickery or fraud to gain sexual gratification by the offender. She remarked: In one case, a woman awoke to her husband spooning her from behind in bed. As was standard in their intimate relationship, she reached into the bedside drawer for a condom, which she provided to her husband over her shoulder without glancing back. They engaged in sexual relations. At some point during the encounter, to her horror, she realized the man in her bed was not her husband at all. In fact, it turns out he was a homeless man who snuck into her house through an unlocked door after her husband left for work early and climbed into her bed. It's not known and was never substantiated that he had been stalking and watching her for some time. As soon as she realized this man was a stranger she jumped up and called the police. The suspect fled but was later apprehended. Since he did not use force, he could not be held accountable for rape. I believe he was ultimately prosecuted for illegal entry to her home. Another case involved a young woman living with her fianc? and his family. Their room was in a dark basement. She was in bed one night when her fianc? entered. She called out his name and he answered affirmatively. They began engaging in sexual relations. At some point during the activity, she came to realize this was not, in fact, her partner, but rather his brother pretending to be him. She screamed, he fled, and she reported to law enforcement with the support of her fianc?. Although the state attempted prosecution, the offender was acquitted by a jury because the state could not show force was used in this case. MS. OLSON noted that these are just several cases in which fraud was used to induce consent. She added that the frequency of such cases is unknown because most do not result in a sex offense charge, so they remain invisible. 1:40:11 PM REPRESENTATIVE STORY thanked Ms. Ellanna and Ms. Trigg for sharing their experiences and expressed her appreciation for women's advocacy. 1:40:53 PM TAYLOR WINSTON, Executive Director, Alaska Office of Victims' Rights (OVR), informed the committee that she is testifying in support of HB 5 as both the executive director of OVR and a former state prosecutor of sexual offences. She highlighted her thirteen years of experience as a state prosecutor, six of which were spent supervising the sexual offense unit in the Anchorage District Attorney's office. She noted that as the supervisor, she screened virtually every sexual offense case that came into the Anchorage office during those six years. She shared her belief that amending the statutes, particularly SA1 [Sexual Assault in the First Degree], SA2 [Sexual Assault in the Second Degree], SAM1 [Sexual Abuse of a Minor in the First Degree], SAM2 [Sexual Abuse of a Minor in the Second Degree], and the definition of "consent," is important and long overdue. She recalled seeing "quite a few" cases in which these amendments were needed in her role as a prosecutor. She said the comments from previous testifiers are encapsulated in her experience, adding that this legislation would help close a loophole with regard to SA1 and SA2 in Sections 1 and 2 of the bill. She agreed with Ms. Olson that it is difficult to quantify the number of victims that would receive justice from this change, in part, because if sexual assault is reported, it might not go further than the level of investigation since the statute does not allow it. She explained that closing the loophole would allow those who had been victimized to have justice where they were previously denied; additionally, it would potentially keep others from becoming victims. MS. WINSTON recounted her experience prosecuting a case that involved fraud. She said upon being handed the case, she immediately questioned her supervisor about the statutes, saying "[the victim] appears to consent to the sexual activity, but not consenting to the person who was doing the sexual activity with her." Her supervisor reassured her, she prepared the case and took it to trial. She remembered that the victim, who was asleep at the time of the assault and thought the defendant was her fianc?, shared compelling testimony; however, the jury ultimately acquitted the defendant, providing no justice to the victim for being violated. She pointed out that the case was tried on the victim's unawareness of the sexual assault. The issue of consent, or lack thereof, was also argued. Ultimately, she said it was a sad case for the victim and the system as a whole, adding that the loophole should be in the law, which this bill hopes to cure. MS. WINSTON addressed Sexual Abuse of a Minor in the First and Second Degree. She related that the law covers 16 and 17-year- olds if the perpetrator is in a position of authority but does nothing for them if the perpetrator is not in such a position. She stated "yes, we can talk about the age of consent, but the people who engage in sex with children who are more than 10 years older than them are predators." She added that these are not people who are looking to form a healthy relationship from normal interactions, rather, they are people who seek out children and groom them at a vulnerable age. Furthermore, she relayed that when the abuse from this older person comes to light, it has devastating emotional effects, such as suicide, cutting, drug and alcohol abuse, and other destructive behavior. It can also create a wedge between the child and his/her family. She recalled a number of cases that relied on the discretion of the judge to deem whether the situation was aggravated and might warrant a higher sentence; however, there was often no reflection of aggravation through the statutory aggravators, so there was no justice for the victim. She stressed the "intense ripple effect" that occurs throughout the victim's life, which is forever changed. She said it has an immense cost to society on health and human services, work productivity, and criminal behavior. She went on to point out that the current [sexual assault] laws predate the invention of the internet, which has allowed offenders an easier way to pray on vulnerable children. In closing, she reiterated that the consent sections are important because they would provide clarity for jurors and lessen the burden on victims. REPRESENTATIVE STORY expressed appreciation for the proposed solutions and questioned how affirmative consent laws had impacted other states that adopted them in stopping sexual assault and predatory behavior. 1:52:12 PM REPRESENTATIVE TARR said there has been a national review of consent laws; however, most of the work on this issue is recent. She indicated that it's too early to understand the impact from the adoption of new laws in other states. 1:53:31 PM REPRESENTATIVE CLAMAN conveyed his support for avoiding a victim-focused trial. He asked whether the proposed definition of consent would cause more focus on the victim and his/her history than the current law. MS. WINSTON clarified that the burden would be shifted from the victim to the offender. Regarding the shift of focus to the victim's past behavior in a trial setting, she cited the rape shield law, which puts the use of past behavior as evidence to the discretion of a judge. She noted that if the behavior is recent and involves the same person, it could be used, but a prosecutor would evaluate the surrounding evidence and related components. She stated that cases "are apples and oranges" because each is unique. Ultimately, she opined that [the new definition] would not cause a greater focus on the victim's previous behavior. REPRESENTATIVE CLAMAN sought verification that Ms. Winston indicated that this bill is unlikely to change the focus that often occurs in sexual assault cases in any significant way compared to current law. MS. WINSTON clarified that she did not mean to suggest that it won't change the focus. She explained that under the new definition of consent, there would be less focus on certain aspects of a victim's behavior than currently, because [the behavior] wouldn't meet the definition and could even be precluded from argument. She went on to state that in certain circumstances, the victim's prior behavior may be relevant as it relates to consent. 1:59:14 PM REPRESENTATIVE CLAMAN referencing data from DOL, stated that "the percentage of declined sexual assault and sexual abuse cases statewide was running roughly 50 percent declined and about 50 percent taken for prosecution." He asked Ms. Winston if during her time actively prosecuting in a statewide supervisory role, the 50 percent declined case rate was consistent with her observations. MS. WINSTON asked Representative Claman if his question pertains to all sex offenses or just the ones related to this bill. REPRESENTATIVE CLAMAN replied all sex offenses. MS. WINSTON noted that without specific numbers from 2004-2010 she could not definitely indicate a percentage; however, she recalled that the prosecution took around 65-70 percent and the remainder percentage was declined. She conveyed that the rate of decline was higher in some areas than others; for example, Sexual Abuse of a Minor cases were often declined because of the nature of the evidence. 2:01:25 PM CHAIR KREISS-TOMKINS asked if the same case involving fraud and the fianc?'s brother was referenced by both invited testifiers. MS. WINSTON said she had not spoken with Ms. Olson to compare notes. She acknowledged that the cases they referenced sounded similar. She further noted that in her case, she was unable to charge Sexual Assault in the First Degree for lack of consent because there wasn't a lack of consent that fit the definition. Sexual Assault in the Second Degree, however, encapsulates someone who is asleep or in an altered state and was therefore a better fit. 2:04:01 PM BRIAN HOSKEN, Student Services Director, Alaska School Activities Association (ASAA), informed the committee that he is a former Anchorage School District administrator with nearly 30 years of experience overseeing comprehensive academics and activity/athletic programs. Currently, his primary role at the Alaska School Activities Association (ASAA) is to facilitate the Coaching Boys into Men (CBIM) program, which is in year two of a five-year grant. He relayed that CBIM is an evidence-based comprehensive violence prevention program designed to inspire coaches to teach their athletes the importance of respect for themselves, others, and women in particular. The program incorporates strategies, scenarios, and resources needed to talk with boys specifically about healthy and respectful relationships, dating violence, sexual assault, and harassment. Additionally, CBIM recognized that sports are "[tremendously]" influential on culture and the lives of young people and was designed to utilize and leverage the social capital held by athletes. He opined that the principles of teamwork and fair play, which are central to athletics, make sports an ideal platform to teach healthy relationship skills. He continued to explain that he trains coaches to teach a curriculum designed for a 12-week sports season in which weekly training lessons are presented from the coach to the athletes. These weekly teaching sessions include topics, such as personal responsibility, insulting language, disrespectful language towards women, digital disrespect, and understanding consent. He noted that he looks forward to further developing the definition of consent, adding that within the CBIM objective, consent is discussed in regard to respecting personal boundaries in intimate/sexual activities; furthermore, CBIM objects the use of pressure, threats, or force in any physical or sexual encounter and actively opposes incidents of rape, sexual coercion, and assault. He offered his belief that this bill would further define and help this particular teaching component. He went on to discuss the program goals specifically developed for Alaska by ASAA. He said that many of the topics incorporated by CBIM and HB 5 mutually validate the need for a preventative educational component and accountability for perpetrators. He opined that the clarification and affirmative definition of consent in this legislation would strengthen the scholastic elements of CBIM. To conclude, he said he looks forward to the opportunity to employ a passed HB 5 in coordination with a statewide implementation of CBIM to further education Alaska's youth with the objective of eradicating violence towards women. 2:09:17 PM CHAIR KREISS-TOMKINS questioned where in Alaska CBIM originated. MR. HOSKEN replied that the CBIM program was developed in Sacramento, California and has since gone nationwide. He added that in Alaska, the program was first implemented in Juneau. 2:10:54 PM REPRESENTATIVE STORY asked Ms. Ellanna how she helps her community understand the importance of the change being sought. MS. ELLANA shared her understanding that most of the individuals who experienced assault and who were part of the effort to bring this concern forward had been assaulted while under the influence of alcohol or while asleep, in which case, consent is implied or inferred under current state law. She stated that understanding how the current law is written is extremely frustrating. She went on to add that if this bill were to pass, the new definition of consent would provide context for the police and their investigations, as well as a mechanism for district attorneys to hold perpetrators accountable. 2:13:19 PM CHAIR KREISS-TOMKINS announced that HB 5 was held over.