Legislature(2021 - 2022)GRUENBERG 120

04/20/2021 03:00 PM House STATE AFFAIRS

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Audio Topic
03:05:16 PM Start
03:08:52 PM Confirmation Hearing|| Department of Public Safety, Commissioner
03:53:29 PM HJR7|| HB73
04:46:07 PM HB5
06:28:21 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Consideration of Governor's Appointees: TELECONFERENCED
- Dept. of Public Safety: Commissioner James
-- Public Testimony --
Heard & Held
-- Testimony <Invitation Only> --
Heard & Held
-- Testimony <Invitation Only> --
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
**Streamed live on AKL.tv**
            HB  5-SEXUAL ASSAULT; DEF. OF "CONSENT"                                                                         
4:46:07 PM                                                                                                                    
CHAIR KREISS-TOMKINS  announced that the final  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."                                                                                               
4:47:08 PM                                                                                                                    
The committee took an at-ease from 4:47 p.m. to 4:51 p.m.                                                                       
4:51:37 PM                                                                                                                    
CHAIR KREISS-TOMKINS  noted that there were  experts available to                                                               
answer  questions  pertaining  to  criminal law  and  rape  kits.                                                               
After ascertaining  that there were  no immediate  questions from                                                               
committee members,  he stated  that in Alaska,  the legal  age of                                                               
marriage was 16 or younger with the proper authorization.                                                                       
4:52:33 PM                                                                                                                    
REPRESENTATIVE TARR, prime  sponsor of HB 5,  interjected to note                                                               
that  for   16-  and  17-year-olds,  marriage   required  written                                                               
parental  consent.    Marriage   involving  14-  or  15-year-olds                                                               
required written parental consent, as  well as a court hearing in                                                               
which the parents and the  minor child were involved.  Permission                                                               
from the  Superior Court was  also required in addition  to proof                                                               
that the  marriage was in  the best interest  of the minor.   She                                                               
reiterated  for purposes  of the  proposed legislation,  that 16-                                                               
and  17-year-olds   could  get  married  with   written  parental                                                               
CHAIR  KREISS-TOMKINS in  regard  to  statutory rape,  questioned                                                               
whether it mattered if the individuals were married.                                                                            
REPRESENTATIVE TARR  understood that sexual assault  laws applied                                                               
to  married  couples.    She  explained  that  HB  5  included  a                                                               
provision  to   account  for  [sexual  assault]   involving,  for                                                               
example, a 16-year-old and a 27-year-old who were unmarried.                                                                    
CHAIR KREISS-TOMKINS asked Mr. Skidmore  to comment on the age of                                                               
consent versus age of marriage in Alaska.                                                                                       
4:55:14 PM                                                                                                                    
JOHN SKIDMORE,  Deputy Attorney General,  Office of  the Attorney                                                               
General, Department of Law, in  response to Chair Kreiss-Tomkins,                                                               
said  he   agreed  with  Representative  Tarr's   analysis.    He                                                               
explained that in  terms of consent, marriage wasn't  a factor in                                                               
regard  to sexual  assault laws.    Alternatively, he  speculated                                                               
that when considering  statutory rape of a minor  - also referred                                                               
to sexual  abuse of a  minor (SAM) -  [marriage] might only  be a                                                               
factor  if the  age difference  between the  two individuals  was                                                               
more than  10 years,  should the  bill pass.   He added  that was                                                               
unsure  whether  marriage  would  be  an  exception  under  those                                                               
CHAIR KREISS-TOMKINS  requested that Mr. Skidmore  follow up with                                                               
information on whether a marital exemption exists legally.                                                                      
4:56:47 PM                                                                                                                    
JAMES STINSON,  Director, Office  of Public  Advocacy, Department                                                               
of  Administration,  understood that  there  was  not a  specific                                                               
provision for  SAM statutes.   He  noted that  there could  be an                                                               
affirmative defense made for consensual  sexual activity within a                                                               
marriage in that  age range; however, he maintained  that one did                                                               
not currently exist for SAM charges.                                                                                            
4:57:39 PM                                                                                                                    
REPRESENTATIVE  EASTMAN questioned  whether marriages  from other                                                               
states  or  jurisdictions  with  a  lower  age  of  consent  were                                                               
recognized in Alaska.                                                                                                           
MR.  SKIDMORE  answered yes,  marriages  from  other states  were                                                               
recognized in  Alaska; however,  he divulged that  it was  not an                                                               
area of law that he was explicitly familiar with.                                                                               
4:58:36 PM                                                                                                                    
REPRESENTATIVE  CLAMAN sought  to  confirm that  Mr. Stinson  had                                                               
said that there  was no marital defense for a  SAM charge at this                                                               
MR. STINSON confirmed to the best of his knowledge.                                                                             
4:59:33 PM                                                                                                                    
RENEE MCFARLAND, Deputy Public  Defender, Public Defender Agency,                                                               
Department  of  Administration,  stated that  AS  11.41.445  made                                                               
marriage  an affirmative  defense  for the  purposes  of the  SAM                                                               
statute  if the  victim was  the  legal spouse  of the  defendant                                                               
unless the offense was committed without the victim's consent.                                                                  
REPRESENTATIVE  CLAMAN sought  to confirm  that sexual  relations                                                               
between a 17-year-old  and a 30-year-old would be  a crime unless                                                               
they were married.                                                                                                              
MR. SKIDMORE  confirmed [that before  the marriage it would  be a                                                               
crime and after they were married it would not].                                                                                
REPRESENTATIVE CLAMAN  asked for verification that  a marriage in                                                               
another state at the  age of 16 would be valid  in Alaska for the                                                               
purposes of this affirmative defense.                                                                                           
MR.  SKIDMORE sought  to confirm  that Representative  Claman had                                                               
asked  whether the  affirmative defense  would be  recognized for                                                               
ages 16 and 17.                                                                                                                 
REPRESENTATIVE CLAMAN confirmed.                                                                                                
MR.  SKIDMORE answered  yes, [that  that the  affirmative defense                                                               
would be recognized for a 16-year-old and a 17-year-old.]                                                                       
5:02:05 PM                                                                                                                    
REPRESENTATIVE  VANCE asked  for confirmation  that the  bill was                                                               
proposing "that  anything less than  10 years with a  minor under                                                               
the age of 18 would no longer be considered statutory rape."                                                                    
MR. SKIDMORE attempted to clarify the question.                                                                                 
REPRESENTATIVE VANCE inquired about the statutory rape statutes.                                                                
MR. SKIDMORE  explained that SAM  statutes indicated  that minors                                                               
did not  have the  ability to consent  at age 13,  14 or  15 when                                                               
there was a certain age gap  between the offender and the victim.                                                               
For those minors  (ages 13, 14, or 15),  the proposed legislation                                                               
would make  it a  higher-level offense when  the age  gap between                                                               
the victim  and the offender  was 10 years; additionally,  with a                                                               
10-year age  gap between  the victim and  the offender,  the bill                                                               
would add a conduct if the victim was 16 or 17.                                                                                 
CHAIR KREISS-TOMKINS concluded that in present law, a 16-year-                                                                  
old  could have  consensual sex  with a  26-year-old (or  someone                                                               
older) and  a 17-year-old  could have consensual  sex with  a 27-                                                               
year-old  (or  someone older);  however,  should  the bill  pass,                                                               
those sexual relations would constitute SAM in the first degree.                                                                
5:05:08 PM                                                                                                                    
REPRESENTATIVE  VANCE   requested  a  visual   representation  of                                                               
present statutes  compared to the proposed  legislation to better                                                               
understand the implications of the bill.                                                                                        
REPRESENTATIVE TARR  directed attention  to Section  4, paragraph                                                               
(1), on page  3, lines 27-31 of  SSHB 5.  She  explained that for                                                               
ages 13,  14, and 15,  the bill  would increase the  "penalty" if                                                               
the age gap [between the victim  and the offender] was 10 or more                                                               
years.  Additionally,  for 16- and 17-year-old  victims, the bill                                                               
would create a crime when the  age gap between the victim and the                                                               
offender was 10 or more years.                                                                                                  
CHAIR KREISS-TOMKINS  pointed out  that there could  be scenarios                                                               
in which  a 17-year-old  and a 27-year-old  were in  a consensual                                                               
sexual  relationship.     He  understood   that  SAM  1   was  an                                                               
unclassified  felony  with  a  minimum of  20  years  in  prison;                                                               
therefore,   per   previous    conversations   about   rates   of                                                               
incarceration and  "proportionality," he  said he wanted  to flag                                                               
that as an area that was slightly concerning.                                                                                   
REPRESENTATIVE TARR said in regard  to the sentencing ranges, she                                                               
was  trying to  work with  a number  of organizations  to balance                                                               
victims' rights against  offenders' rights.  She  relayed that on                                                               
average, perpetrators  of child  sexual abuse  had more  than 100                                                               
victims;  further,  that  there  was no  standard  for  effective                                                               
treatment.  She added that  reoffending and recidivism was common                                                               
for  sex  offenses.   She  stated  that  the  level of  harm  was                                                               
troubling and  expressed her  hope that as  a result  of changing                                                               
the laws, high-frequency perpetrators would be incarcerated.                                                                    
5:11:30 PM                                                                                                                    
REPRESENTATIVE CLAMAN sought to confirm  that presently, a 16- or                                                               
17-year-old could legally  engage in sexual relations  with a 30-                                                               
MR.  SKIDMORE replied  yes, as  long  as the  sexual conduct  was                                                               
consensual.   He added that no  SAM statute specified that  a 16-                                                               
or 17-year-old could not consent.                                                                                               
REPRESENTATIVE CLAMAN  inquired about DOL's position  on the bill                                                               
in its current form.                                                                                                            
MR. SKIDMORE said DOL was neutral.                                                                                              
REPRESENTATIVE CLAMAN  asked whether there had  been any research                                                               
on  the potential  impact  of this  bill  on Native  communities,                                                               
which  were   already  overrepresented   in  the   Department  of                                                               
Corrections (DOC).                                                                                                              
REPRESENTATIVE  TARR answered  yes,  she explained  that she  had                                                               
worked closely with Alaska Native  women in drafting the proposed                                                               
legislation  to reflect  their experiences.   More  recently, she                                                               
reported working with  the Alaska Native Justice  Center, as well                                                               
as the  Alaska Network on  Domestic Violence and  Sexual Assault.                                                               
She  maintained that  the goal  was  to listen  to survivors  and                                                               
incorporate  their  personal  experiences  in  balance  with  the                                                               
criminal justice system response.                                                                                               
REPRESENTATIVE CLAMAN  said he appreciated that  response, but it                                                               
lacked  statistical  data  on   the  real  overrepresentation  of                                                               
minority communities in  Alaska's jails.  He  asked a statistical                                                               
analysis on how the bill would impact the prison population.                                                                    
REPRESENTATIVE  TARR stated  that she  did  not, as  she did  not                                                               
possess the resources  to conduct such research.   She maintained                                                               
that  her  strong support  for  human  rights and  survivors  was                                                               
always reflected in the legislation she sponsored.                                                                              
5:14:34 PM                                                                                                                    
REPRESENTATIVE  VANCE inquired  about  the  percentage of  sexual                                                               
assault offenders in DOC facilities.   She reported that at least                                                               
59  percent  of Alaskan  women  had  experienced violence  in  an                                                               
intimate relationship.   She relayed that  her constituents would                                                               
want  to exercise  the  full  extent of  the  law against  sexual                                                               
assault  crimes especially  against  children.   She opined  that                                                               
Alaskans were  not thinking about  the prison "capacity"  when it                                                               
came  to justice  for crimes  against  children.   She urged  her                                                               
fellow lawmakers to take those beliefs into account.                                                                            
CHAIR KREISS-TOMKINS  asked Ms. Meade to  estimate the percentage                                                               
of  inmates   that  were  incarcerated  in   Alaska  correctional                                                               
facilities for crimes of sexual misconduct.                                                                                     
5:16:53 PM                                                                                                                    
NANCY  MEADE,  General  Counsel,  Office  of  the  Administrative                                                               
Director, Alaska  Court System, declined to  estimate that figure                                                               
and deferred the question to DOC.                                                                                               
REPRESENTATIVE VANCE questioned the  percentage of sexual crimes,                                                               
either fully prosecuted or not, that came through the courts.                                                                   
MS.  MEADE  offered  to  follow   up  on  the  number  of  sexual                                                               
misdemeanors and felonies that were filed.                                                                                      
5:17:51 PM                                                                                                                    
REPRESENTATIVE CLAMAN  explained that his prior  request for data                                                               
stemmed  from  apprehension  about  the  consistently  increasing                                                               
prison  sentences  without any  meaningful  benefit  in terms  of                                                               
public  safety.   He expressed  his concern  about the  impending                                                               
impacts on minority communities.   He acknowledged Representative                                                               
Vance's  comments  and  the importance  of  imposing  "no  mercy"                                                               
against  some  crimes; however,  he  recalled  his experience  in                                                               
rural communities  where the threat  of 15- or  20-year sentences                                                               
factor into people's unwillingness to  come forward.  He conveyed                                                               
apprehension about  the idea of  incarcerating a  30-year-old who                                                               
was engaging  in consensual  sex with  a 17-year-old  and sending                                                               
him/her  away  for a  minimum  of  20  years on  an  unclassified                                                               
felony.  He  reiterated that he asked the  data related questions                                                               
to better understand the impact  that these decisions would have.                                                               
He  maintained his  belief  that the  intention  of the  proposed                                                               
legislation was well placed, but he  was not sure it would result                                                               
in the desired effect.                                                                                                          
REPRESENTATIVE TARR  said she  agreed with  Representative Claman                                                               
and Representative Vance.   She recalled that  when she initially                                                               
presented  the legislation,  she had  questioned the  appropriate                                                               
"criminal  justice  response"  and   the  appropriate  length  of                                                               
incarceration to  no longer  cause harm.   She  said she  was not                                                               
capable of answering  that alone or hearing the  stories of human                                                               
suffering.   She  reiterated that  she  was asking  for help  and                                                               
emphasized that  she would  be receptive to  ideas.   She further                                                               
noted  that she  had  considered  a sentence  of  7-10 years  for                                                               
first-time offenders.   She  expressed her hope  that as  a woman                                                               
who had never  felt safe living in Alaska,  the legislature would                                                               
give the proposed legislation  serious consideration and evaluate                                                               
the human rights of everyone involved.                                                                                          
5:22:57 PM                                                                                                                    
CHAIR KREISS-TOMKINS asked  Mr. Skidmore to speak to  the data on                                                               
declined prosecutions and why they  occur; additionally, he asked                                                               
to  what  extent an  insufficient  definition  of consent  was  a                                                               
MR.  SKIDMORE said  he did  not  know the  rate of  declinations;                                                               
however,  the   vast  majority  of   declinations  were   due  to                                                               
insufficient evidence,  he reported.   He explained that  much of                                                               
that  was associated  with the  nature of  sexual assault,  where                                                               
they  occur,  and  the  type   of  evidence  that  was  generally                                                               
available.   He  opined that  changing the  definition would  not                                                               
change the  ability to  accept a  significantly higher  number of                                                               
cases for evidentiary reasons; nonetheless,  it would allow cases                                                               
that had been declined as a result  of "a lack of use of force or                                                               
coercion" to be accepted.  He  shared his belief that it would be                                                               
challenging to provide a statistic  analysis of how [the proposed                                                               
legislation]  would   increase  cases,   noting  that   the  same                                                               
challenges would  continue to exist because  many sexual assaults                                                               
occur  between  two  individuals only;  therefore,  changing  the                                                               
definition  would  not  likely change  the  evidence  of  consent                                                               
that's  available.     He  added  that   despite  the  continuous                                                               
challenges, [DOL]  was working on  ways to  improve investigatory                                                               
practices   and  prosecutorial   training.     He  concluded   by                                                               
reiterating that sexual assault would  continue to be a difficult                                                               
crime to prosecute.                                                                                                             
CHAIR  KREISS-TOMKINS sought  to  confirm that  Mr. Skidmore  had                                                               
stated that  the reason many  prosecutions were declined  was due                                                               
to a deficit of evidence  rather than the deficient definition of                                                               
MR.  SKIDMORE answered  yes.   He  went on  to  explain that  the                                                               
numbers indicated that there was  a significant difference in the                                                               
number  of cases  reported  to law  enforcement  compared to  the                                                               
number of cases referred to DOL.   He added that he was unsure of                                                               
whether  the unrefereed  cases were  driven  by the  definitional                                                               
problem or a lack  of evidence.  For that reason,  he said he was                                                               
hesitant  to  definitively  quantify the  proposed  legislation's                                                               
potential impact.                                                                                                               
5:28:56 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  understood  that the  present  definition                                                               
that had  been applied  by both by  law enforcement  officers and                                                               
the prosecutor's  office was based  on the court analysis  of the                                                               
statute  rather than  the statutory  language itself.   He  asked                                                               
whether that was correct.                                                                                                       
MS. MCFARLAND  replied that she  was not  aware of many  cases in                                                               
which the  court had  strayed too  far from  the language  in the                                                               
statute.    Further,  she  relayed  that the  court  had  read  a                                                               
requirement into  the sexual assault statutes  that the defendant                                                               
recklessly disregard the lack of  consent, which was not provided                                                               
in the statute itself.                                                                                                          
REPRESENTATIVE CLAMAN recalled hearing  that the consent language                                                               
focused the inquiry  more on the victim and less  on the offender                                                               
by inviting the  defense to raise questions about  how the victim                                                               
may or  may not have  communicated his/her consent or  thereof in                                                               
the past.   He asked if  the statute change would  put more focus                                                               
on the victim or the offender.                                                                                                  
MR. SKIDMORE  said he  did not  have a  sense whether  this would                                                               
change  how  the defense  bar  sought  to defend  sexual  assault                                                               
cases.   He opined that  the issue of  consent was a  question of                                                               
the perpetrator's  assessment of  that lack of  consent; however,                                                               
talented and creative defense attorneys  could return to how that                                                               
assessment was  influenced by  a victim's words  or conduct.   He                                                               
said it would always be one  of the issues involved in litigating                                                               
these types of cases.                                                                                                           
5:33:14 PM                                                                                                                    
REPRESENTATIVE CLAMAN  asked whether the proposed  changes to the                                                               
consent law  would put more focus  on the victim compared  to the                                                               
current statute.                                                                                                                
MS. MCFARLAND  relayed that the  Public Defender  Agency believed                                                               
that  compared to  the current  definition, the  proposed changes                                                               
would  switch the  focus  to  the victim.    She  added that  the                                                               
present statute  focused on the  defendant's conduct  of coercing                                                               
the  victim, whereas  the proposed  definition  entails a  freely                                                               
given  reversible  agreement.   She  opined  that switching  from                                                               
whether the defendant coerced the  conduct to whether there was a                                                               
freely   given  agreement   would  shift   the  focus   from  the                                                               
defendant's conduct to the victim.                                                                                              
REPRESENTATIVE CLAMAN asked Ms. McFarland to illustrate her                                                                     
previous statement with a hypothetical scenario.                                                                                
MS. MCFARLAND said it was hard to come up with a hypothetical on                                                                
the spot because the proposed definition expanded the type of                                                                   
conduct that would fall under the statute.                                                                                      
REPRESENTATIVE CLAMAN directed the question to Mr. Stinson.                                                                     
5:36:28 PM                                                                                                                    
MR. STINSON remarked:                                                                                                           
     Currently,  there's  essentially  the rape  the  shield                                                                    
     statute  which  prevents impermissible  evidence  being                                                                    
     admitted  ... 'because  a victim  had sexual  relations                                                                    
     with certain people, they are  therefore likely to have                                                                    
     had  sexual  relations  with the  defendant'  -  that's                                                                    
     impermissible.    But  evidence  of  a  victim's  prior                                                                    
     sexual  conduct is  admissible if  it's  relevant to  a                                                                    
     material issue in the case.   So, for example, if their                                                                    
     individual relationship  had a certain type  of consent                                                                    
     or certain  types of  ritual or habit  - that  might be                                                                    
     admissible.     I  think   when  you're   dealing  with                                                                    
     affirmative consent, there is  at least the possibility                                                                    
     that a  creative attorney could make  the argument that                                                                    
     what they're  seeking to admit is  testimony from other                                                                    
     people who may  have been a partner of  that person who                                                                    
     had consent  in a certain  way from that victim.   And,                                                                    
     so,  I think  the argument  there would  be, we're  not                                                                    
     admitting this for the purpose  of showing that because                                                                    
     the  victim  had  sexual  relations  with  these  other                                                                    
     people  that  therefore,  it's  likely  that  she  also                                                                    
     consented  to the  defendant.   ... 'For  example, this                                                                    
     person always  wink, says these  words, and  does this,                                                                    
     and that's their  signal that they are  ready to engage                                                                    
     in relation.'   If in a small community  you had people                                                                    
     that had  testimony like that,  I could see  that there                                                                    
     would be  an argument before  a trial court  judge that                                                                    
     the  manner  of  affirmative  consent  is  what  you're                                                                    
     seeking to  admit and that  its irrelevant  because the                                                                    
     defendant  had  awareness that  that  was  the type  of                                                                    
     affirmative consent that that  person gives and that it                                                                    
     was the same  type of affirmative consent  given in the                                                                    
     past.   So, I can see  an attorney making that  type of                                                                    
     arguments.  ... I think that that is an example of how                                                                     
     it potentially bends ... the rape shield law.                                                                              
REPRESENTATIVE CLAMAN  proposed a hypothetical scenario  in which                                                               
a person met  another individual in a bar wherein  they drank and                                                               
danced "suggestively" before  going back to one  of his/her homes                                                               
and  engaging in  [sexual] relations.   The  next night  the same                                                               
person engaged  in similar  conduct with  a different  person who                                                               
had witnessed the actions of  the prior night, which was followed                                                               
by an  allegation of  nonconsensual sex.   He asked  whether this                                                               
was the kind of scenario that Mr. Stinson had referenced.                                                                       
MR. STINSON  said Representative Claman's scenario  would be more                                                               
tenuous  and  would  become fact  specific  about  what  actually                                                               
happened after the  bar.  He explained that the  scenario he [Mr.                                                               
Stinson] had  posed was alluding  to a community reputation.   He                                                               
reiterated that  these scenarios  typically become  fact specific                                                               
and  whether a  trial judge  would admit  evidence of  that would                                                               
depend on those specific facts.                                                                                                 
5:41:33 PM                                                                                                                    
REPRESENTATIVE VANCE asked  whether the law was  more inclined to                                                               
lean on the victim's reputation or whether he/she gave consent.                                                                 
MR.  STINSON stated  that the  law was  "absolutely designed"  to                                                               
look at  whether or not  the individual  gave consent.   He added                                                               
that  the purpose  of the  rape  shield statute  was to  prohibit                                                               
generalized   evidence   of   somebody's  "reputation"   in   the                                                               
community.    He  explained  that   these  scenarios  were  being                                                               
examined on  whether a pattern  of specific types  of affirmative                                                               
consent would  rise to a  level of  relevancy that a  court could                                                               
admit with a change in the law.                                                                                                 
MR. SKIDMORE  agreed with  Mr. Stinson that  the rape  shield law                                                               
was  designed to  protect  against someone's  reputation.   As  a                                                               
prosecutor, he  maintained that just  because a person  agreed to                                                               
sleep with  one person  did not  mean that  they agreed  to sleep                                                               
with someone else.  He continued  to explain that just because an                                                               
individual  engaged in  an activity,  such as  dancing, with  one                                                               
person, it could not be construed  as consent.  He concluded that                                                               
this law  was trying to  convey that affirmative consent  must be                                                               
sought.   Further, he  believed that  if this  law were  to pass,                                                               
there would  be more  litigation around  the rape  shield statute                                                               
and  many defense  lawyers would  attempt  creative arguments  to                                                               
admit different types  of evidence.  Whether or  not courts admit                                                               
it, he said, would be fiercely litigated.                                                                                       
CHAIR KREISS-TOMKINS  asked if  the legislature  were to  adopt a                                                               
definition of  affirmative consent for sexual  relationships, how                                                               
consent while given in an impaired  state would be seen under the                                                               
5:45:45 PM                                                                                                                    
MR.  SKIDMORE  explained  that  he  had not  seen  any  case  law                                                               
suggesting that  intoxication created  the inability  to consent.                                                               
Nonetheless, he  said it was  possible to  drink to the  point in                                                               
which someone was  not capable of consenting.  He  added that the                                                               
law examined  when a person  became incapacitated from  the level                                                               
of intoxication.   Further, he said he was unsure  how the courts                                                               
would ultimately  interpret this issue  in terms of  the proposed                                                               
definition of freely  given consent.  He maintained  he could not                                                               
imagine that simply  because one person had one or  two drinks of                                                               
alcohol, that  he/she was incapable  of consenting.   He conveyed                                                               
that  it was  still incumbent  upon the  defendant to  recklessly                                                               
disregard  a substantial  and unjustifiable  risk that  there was                                                               
not  consent.    He  defined  reckless as  "the  disregard  of  a                                                               
substantial  and   unjustifiable  risk  that   that  circumstance                                                               
exists."   He further noted  that recklessness in  its definition                                                               
was from the  perspective of the sober person;  therefore, if the                                                               
defendant  was intoxicated,  they were  still evaluated  from the                                                               
standpoint of a sober person.                                                                                                   
5:48:23 PM                                                                                                                    
CHAIR  KREISS-TOMKINS sought  to  confirm that  Mr. Skidmore  had                                                               
suggested  that  if an  individual  had  been drinking  and  gave                                                               
consent, the courts  would adjudicate where the  line was between                                                               
incapacitation,  which  would   constitute  sexual  assault,  and                                                               
freely given consent.  He asked whether that was a fair summary.                                                                
MR.  SKIDMORE confirmed.   He  added that  at some  point, courts                                                               
would provide guidance to the  jury, which allowed them to decide                                                               
on whether the  facts as they were presented met  the elements of                                                               
the offense.                                                                                                                    
CHAIR  KREISS-TOMKINS asked  Mr. Stinson  how intoxication  would                                                               
relate to freely given affirmative consent.                                                                                     
MR. STINSON  agreed with  Mr. Skidmore  that if  intoxication did                                                               
not amount  to incapacitation, the  individual should be  able to                                                               
give  consent;  however,  he  noted that  there  could  be  fact-                                                               
specific scenarios that cause pause.                                                                                            
CHAIR KREISS-TOMKINS  inquired about  "sex with  an incapacitated                                                               
person" under current law.                                                                                                      
MR. STINSON believed  that sexual assault [in  the second degree]                                                               
was a  class A  felony; therefore,  engaging in  sexual relations                                                               
with an  individual who was  asleep or incapacitated  was illegal                                                               
and considered sexual assault.                                                                                                  
REPRESENTATIVE TARR  pointed out  that Section 5,  paragraph (1),                                                               
of SSHB  5 was intended  to address Representative  Claman's line                                                               
of questioning regarding  the rape shield law,  as referencing an                                                               
individual's "reputation"  was often how survivors  were attacked                                                               
in the court room.                                                                                                              
5:53:05 PM                                                                                                                    
CHAIR KREISS-TOMKINS considered a scenario  in which a married or                                                               
unmarried  couple had  a healthy,  consensual  relationship.   He                                                               
asked how those cases would be  treated when there was no word or                                                               
action of  affirmative consent,  but it  was a  consensual sexual                                                               
encounter between the two individuals.                                                                                          
MR.  SKIDMORE  said  the  bill was  written  to  consider  words,                                                               
conduct,  and the  totality of  the circumstances.   He  believed                                                               
that  those factors  in addition  to  the previous  relationship,                                                               
conduct,  and understanding  between  the  individuals would  all                                                               
play into whether there was  a substantial and unjustifiable risk                                                               
that there was  not consent in that particular  circumstance.  He                                                               
reiterated that  all of  that would  be taken  into consideration                                                               
and should  be able  to protect against  a misunderstanding.   He                                                               
opined that those considerations would  also make some cases more                                                               
difficult for  prosecution to prove; nonetheless,  he believed it                                                               
was the only way that this  could truly be approached from both a                                                               
policy and a legal perspective.                                                                                                 
MR. STINSON  conveyed some concern  from the  defense perspective                                                               
that  adding  "specific   to  the  conduct  at   issue"  and  the                                                               
additional  definition of  "freely given"  would compartmentalize                                                               
each sexual  contact or  separate the  course of  sexual conduct.                                                               
He said it seemed to suggest  that a positively expressed word or                                                               
action  would  be necessary  for  every  step  of  the way.    He                                                               
concluded  that the  defense perspective  was fearful  of whether                                                               
normative sexual conduct could be captured.  He remarked:                                                                       
       I understand that you would still have a reckless                                                                        
      mental state.  I guess the question I would pose is                                                                       
     that if it  has to be specific to the  conduct at issue                                                                    
     and if  it has  to be positively  expressed by  word or                                                                    
     action then, I think, it's  difficult at least on paper                                                                    
     to  say that  you  wouldn't be  reckless  going up  and                                                                    
     having   sexual  contact   with   somebody  without   a                                                                    
     positively  expressed  word   or  action  because  it's                                                                    
     specific to the conduct at issue.                                                                                          
MR.  STINSON  said he  would  be  happy  to hear  Mr.  Skidmore's                                                               
perspective  as to  whether  it  would be  a  reckless action  by                                                               
default to  ever presume  consent, even within  the context  of a                                                               
relationship, arguably.                                                                                                         
MR.  SKIDMORE understood  the concept  expressed by  Mr. Stinson;                                                               
however, he  said he  fundamentally disagreed  on the  basis that                                                               
within   a  relationship   with  that   level  of   consent,  the                                                               
individuals typically  knew that  certain things  were okay.   He                                                               
conveyed that  he had difficulty imagining  a situation involving                                                               
two people  in a  long-term relationship  being submitted  to law                                                               
enforcement and prosecutors,  or that a jury would  find beyond a                                                               
reasonable doubt  that there wasn't affirmative  consent by words                                                               
or conduct  due to the  history that  would be found  within that                                                               
relationship.  Nonetheless,  he said that issue had  been a topic                                                               
of conversation amongst prosecutors.                                                                                            
6:00:18 PM                                                                                                                    
CHAIR  KREISS-TOMKINS questioned  how the  history of  a healthy,                                                               
consensual relationship would  be taken into account  if that was                                                               
not allowable with the rape shield law.                                                                                         
MR.  SKIDMORE  explained  that  the  rape  shield  law  protected                                                               
against bringing  in instances  of sex  with a  different person.                                                               
He reiterated  that the rape  shield law was intended  to protect                                                               
against the assumption  that just because an  individual had been                                                               
willing to  engage in sexual  conduct with one or  more partners,                                                               
he/she was willing  to engage in sex with literally  anybody.  He                                                               
argued that  he could  find a case  that allowed  previous sexual                                                               
conduct between the  same people to be deemed relevant  in a case                                                               
of sexual conduct.                                                                                                              
6:02:14 PM                                                                                                                    
REPRESENTATIVE CLAMAN returned to the  topic of intoxication.  He                                                               
referenced   AS  11.81.630,   as  well   as  the   definition  of                                                               
"knowingly"   in  AS   11.81.900(a)(2)  and   "reckless"  in   AS                                                               
11.81.900(a)(3), all of  which were focused on  intoxication as a                                                               
defense raised by the defendant.   He sought to confirm that that                                                               
the defendant  was considered as if  he/she was sober.   He asked                                                               
whether that was correct.                                                                                                       
MR. SKIDMORE  replied in the  affirmative.  He explained  that in                                                               
considering  intoxication as  a  defense, the  focus  was on  how                                                               
intoxication  impacted  the  defendant's   ability  to  form  the                                                               
required "mens rea,"  or mental element.  Further,  he was unsure                                                               
how the  question of whether  intoxication or any  consumption of                                                               
alcohol would impact a victim's  ability to provide consent would                                                               
be answered.                                                                                                                    
REPRESENTATIVE CLAMAN clarified that he  was not asking about the                                                               
extreme scenarios  in which  an individual may  have been  on the                                                               
margin of  being able  to give  consent because  of the  level of                                                               
intoxication.   He inquired  about someone  who was  considered a                                                               
"happy drunk"  and whether  that would  be meaningful  in whether                                                               
that person would be able to give consent.                                                                                      
MR.  SKIDMORE  answered  yes,  both the  level  of  the  victim's                                                               
intoxication   and  whether   he/she  was   consenting  in   that                                                               
circumstance  would  be considered.    He  said  he did  not  see                                                               
anything that would  suggest that simply because  that person had                                                               
been drinking that it took away his/her ability to consent.                                                                     
CHAIR  KREISS-TOMKINS  asked  Mr.  Stinson to  comment  from  the                                                               
defense bar perspective.                                                                                                        
6:06:52 PM                                                                                                                    
MR.  STINSON  agreed  with  Representative  Claman  that  it  was                                                               
designed to prevent a defendant  from arguing that a mental state                                                               
was  not  met  due  to intoxication,  which  only  happened  with                                                               
specific intent crimes.   He explained that while  he agreed with                                                               
Mr. Skidmore  that there was  not a legal  bar for the  victim to                                                               
consent  in  that scenario,  the  defendant  would be  looked  at                                                               
potentially  as a  sober person  and  whether he/she  consciously                                                               
disregarded  the substantial  and unjustifiable  risk that  there                                                               
was not affirmative  consent.  He concluded that  a "happy drunk"                                                               
who  was  not  incapacitated  could   give  consent;  further,  a                                                               
defendant would  not be able to  use intoxication as any  kind of                                                               
defense for misperceiving consent.                                                                                              
MS. MCFARLAND  opined that the proposed  legislation would likely                                                               
increase the  amount of  litigation in these  cases, as  it would                                                               
present many  questions about  what it means  to consent  and how                                                               
intoxication plays into that.                                                                                                   
6:10:39 PM                                                                                                                    
MS.  MCFARLAND  in response  to  a  question from  Representative                                                               
Claman, stated that  the state would consider the  conduct at the                                                               
time and would have to prove  that there was not consent and that                                                               
that the defendant recklessly disregarded that consent.                                                                         
REPRESENTATIVE TARR  pointed out that the  fiscal notes indicated                                                               
that  the   proposed  legislation  would  result   in  additional                                                               
litigation.    Further,  she  emphasized   that  women  were  not                                                               
included in the  process of drafting the  current laws [regarding                                                               
sexual assault]  nor were they  involved in the  consideration of                                                               
this  policy.   Additionally,  as  a  disproportionate number  of                                                               
survivors  were women,  she said  she  wanted to  make sure  that                                                               
their  voices were  not lost.    She believed  that women  wanted                                                               
affirmative  consent because  in  the current  form  of the  law,                                                               
their  right  to  consent  had  already been  taken  away.    She                                                               
referenced  the 50-60  letters  of support  and  opined that  the                                                               
proposed  legislation should  advance in  the interest  of public                                                               
6:13:30 PM                                                                                                                    
CHAIR  KREISS-TOMKINS believed  that members  were united  on the                                                               
desired  outcome;  however,  he  wanted to  ensure  that  he  was                                                               
confident  in   understanding  the  framework   when  considering                                                               
legislation that involved changes to  criminal law.  He noted his                                                               
appreciation  for the  passion Representative  Tarr had  given to                                                               
this issue for many years.                                                                                                      
REPRESENTATIVE  TARR further  clarified that  in the  possibility                                                               
the legislative  record would be  looked to in  future litigation                                                               
regarding the  definition of affirmative consent,  the intent was                                                               
not to  require a verbal  agreement for  each [compartmentalized]                                                               
act during  a sexual encounter.   She added that  words, actions,                                                               
and the totality of the situation were intended to be included.                                                                 
6:15:09 PM                                                                                                                    
CHAIR  KREISS-TOMKINS  directed  the following  question  to  Mr.                                                               
     If  you   have  a   couple  in  a   healthy  consensual                                                                    
     relationship and ... one person  is looking to initiate                                                                    
     a sexual encounter  and ... they put their  hand on the                                                                    
     other  person in  a sexual  manner, which  falls within                                                                    
     the scope of some of  the sexual misconduct laws in the                                                                    
     hopes of initiating  ... sex.  How do you  look at that                                                                    
     in  terms  of  [whether  that would  fall]  within  the                                                                    
     definition   of  sexual   misconduct  and   affirmative                                                                    
     consent framework and where are the lines?                                                                                 
MR.  STINSON acknowledged  that the  legislative perspective  was                                                               
helpful  to state  on  the record  because the  goal  was not  to                                                               
criminalize  normative  sexual behavior.    That  being said,  he                                                               
expressed concern that within  the affirmative consent framework,                                                               
the ultimate goal  was to ensure that one party  wouldn't have to                                                               
do something to express the  fact that he/she was not consenting;                                                               
instead,   he/she  would   have  to   do  something   that  would                                                               
[affirmatively] express  consent.   He explained that  in looking                                                               
at a normative  sexual relationship between two  people, they may                                                               
without initiate sexual contact  without any prompting or consent                                                               
specific  to the  conduct at  issue.   He said  typically, within                                                               
those  types  of relationships,  a  person  would either  respond                                                               
positively  or  negatively.    At  that  point,  in  a  committed                                                               
relationship,  even sexual  contact could  rise to  the level  of                                                               
criminality if  an indication to  stop was  not listened to.   He                                                               
maintained that  the defense was  concerned that a  plain reading                                                               
of the proposed  legislation could be interpreted  counter to the                                                               
legislature's desired outcome.   He continued to  convey that the                                                               
definition of affirmative  consent in the bill  seemed to suggest                                                               
that there  would have to be  some initiation on the  part of the                                                               
person  receiving  the sexual  contact  or  sexual advance.    He                                                               
concluded that  ultimately, deciding  whether to  further clarify                                                               
that  language  would   be  a  policy  call  on   behalf  of  the                                                               
legislature.   Additionally,  he  surmised that  the "conduct  at                                                               
issue" was  included in the  legislation to capture  the scenario                                                               
in which a person did not  give expressed consent, nor did he/she                                                               
resist or say "stop."   He said it would also  be up to lawmakers                                                               
to decide what responsibility, if  any, would be on another party                                                               
to object to a course of sexual contact at a given time.                                                                        
6:20:36 PM                                                                                                                    
REPRESENTATIVE   STORY  expressed   her   appreciation  for   the                                                               
discussion and  shared her belief  that something had to  be done                                                               
about the definition  [of consent].  She expressed  her hope that                                                               
the   committee  would   continue  its   work  on   the  proposed                                                               
legislation  to ensure  that everyone  was  comfortable with  the                                                               
final product.                                                                                                                  
REPRESENTATIVE  CLAMAN  observed  that sometimes  hearings  raise                                                               
more  questions  than answers.    He  said  he would  prefer  the                                                               
opportunity to follow up and reflect on some of these questions.                                                                
REPRESENTATIVE VANCE  asked Representative Tarr why  the language                                                               
"competent  person" and  "may be  reversed  at any  time for  any                                                               
reason" was not included in the bill.                                                                                           
REPRESENTATIVE  TARR  stated  that the  original  definition  [of                                                               
consent] included "by a competent  person;" however, the language                                                               
was  removed  after  conversing  with  DOL  about  the  statutory                                                               
redundancy  of  mental  state,  which  was  addressed  in  sexual                                                               
assault in  the second degree,  she relayed.  She  explained that                                                               
"reversible"  was   included  in   the  definition   to  maintain                                                               
consistency with  the current education  regarding consent.   She                                                               
said the  goal was  to utilize  the right  language to  allow for                                                               
effective  prosecution of  sexual assault  crimes; therefore,  if                                                               
"specific to the conduct at  issue" would be legally problematic,                                                               
it shouldn't be included.                                                                                                       
6:27:04 PM                                                                                                                    
CHAIR KREISS-TOMKINS announced that HB 5 was held over.                                                                         

Document Name Date/Time Subjects
James Cockrell Resume_Redacted.pdf HSTA 4/20/2021 3:00:00 PM
HJR 7 Fiscal Note - 1-2-021821-GOV-N.PDF HSTA 4/20/2021 3:00:00 PM
HJR 7 Transmittal Letter - 01.19.21.pdf HSTA 4/20/2021 3:00:00 PM
HJR 7 Version A.PDF HSTA 4/20/2021 3:00:00 PM
HB 73 Fiscal Note - 1-2-021821-REV-N.PDF HSTA 4/20/2021 3:00:00 PM
HB 73
HB 73 Fiscal Note - 2-2-021821-GOV-Y.PDF HSTA 4/20/2021 3:00:00 PM
HB 73
HB 73 Fiscal Note - 3-2-021821-GOV-Y.PDF HSTA 4/20/2021 3:00:00 PM
HB 73
HB 73 Transmittal Letter - 01.19.21.pdf HSTA 4/20/2021 3:00:00 PM
HB 73
HB 73 Version A.PDF HSTA 4/20/2021 3:00:00 PM
HB 73
HJR 7 and HB 73 Hearing Request Memo.pdf HSTA 4/20/2021 3:00:00 PM
HB 73
HJR 7 and HB 73 PowerPoint - Dept of Revenue 041921 - Final.pdf HSTA 4/20/2021 3:00:00 PM
HB 73