Legislature(2021 - 2022)GRUENBERG 120
05/04/2021 03:00 PM House STATE AFFAIRS
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HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT" 5:31:33 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." CHAIR KREISS-TOMKINS resumed the discussion on Amendment 4, which had been introduced for consideration during the previous bill hearing on 4/27/21. 5:32:59 PM REPRESENTATIVE TARR, prime sponsor of HB 5, moved to adopt Amendment 4, labeled 32-LS0065\G.6 Radford, 4/26/21, which read: Page 2, line 9: Delete "who is" Insert "whom the offender has" Page 2, line 11, following "person": Insert "based on the offender's physical identity, not on characteristics, traits, or accomplishments of or similar facts about the offender, with reckless disregard that the person would not have consented to the sexual penetration if the person knew the offender's real identity" Page 2, following line 11: Insert a new bill section to read: "* Sec. 2. AS 11.41.410(b) is amended to read: (b) Sexual assault in the first degree, (1) under (a)(1) - (4) of this section, is an unclassified felony and is punishable as provided in AS 12.55; (2) under (a)(5) of this section, is a class A felony and is punishable as provided in AS 12.55." Renumber the following bill sections accordingly. Page 2, line 31: Delete "who is" Insert "whom the offender has" Page 3, line 2, following "person": Insert "based on the offender's physical identity, not on characteristics, traits, or accomplishments of or similar facts about the offender, with reckless disregard that the person would not have consented to the sexual contact if the person knew the offender's real identity" Page 6, line 19, following "AS 11.41.420(a), ": Insert "AS 11.41.420(b), as amended by sec. 2 of this Act," Delete "sec. 2" Insert "sec. 3" Delete "sec. 3" Insert "sec. 4" Page 6, line 20: Delete "sec. 4" Insert "sec. 5" Page 6, lines 20 - 21: Delete "sec. 5" Insert "sec. 6" Page 6, line 21: Delete "sec. 6" Insert "sec. 7" Page 6, line 22: Delete "sec. 7" Insert "sec. 8" Delete "sec. 8" Insert "sec. 9" Page 6, line 23: Delete "sec. 9" Insert "sec. 10" Page 6, line 24: Delete "sec. 11" Insert "sec. 12" Page 6, line 25: Delete "secs. 1 - 9 and 11" Insert "secs. 1 - 10 and 12" Page 6, line 26: Delete "Section 10" Insert "Section 11" REPRESENTATIVE EASTMAN objected for the purpose of discussion. 5:33:13 PM REPRESENTATIVE TARR highlighted the three objectives of Amendment 4: firstly, it would clarify the language in the rape by fraud provision; secondly, it would reclassify the crime of rape by fraud from an unclassified felony to a class A felony; thirdly, it would reclassify sexual contact by fraud to a class B felony. Additionally, she said she would consider the change of "physical identity" to "actual identity" as a friendly amendment, per the committee's discussion in the previous bill hearing. CHAIR KREISS-TOMKINS noted that he may be the "odd one out" in terms of the relative benefits of "actual" versus "physical." 5:35:32 PM REPRESENTATIVE EASTMAN suggested replacing "physical [identity]" with "personal [identity]." REPRESENTATIVE TARR said she would appreciate an attorney's input on the wordsmithing to avoid any unintended consequences. 5:36:29 PM JAMES STINSON, Director, Office of Public Advocacy, Department of Administration, defined "actual" as "existing in fact," or "contrasted with what as intended, expected, or believed." He acknowledged that "actual identity" could be perceived as relatively broad, as its meaning was somewhat all-encompassing. Further, he believed "actual identity" could be confusing, as the following language would read "not on characteristics, traits, or accomplishments," which were sometimes considered part of a person's actual identity. He added that he understood the intention behind "personal identity" too, as "personal" was generally defined as "belonging to a particular person rather than anyone else." Ultimately, he believed that "physical identity" seemed to capture the legislative intent and understood why it was initially chosen. 5:38:51 PM REPRESENTATIVE EASTMAN remarked: Physical identity - does it have to be a specific person that we can have a name for, or is it also a violation if it's someone they don't know versus someone they do know? 5:40:34 PM MR. STINSON posed the following hypothetical in an attempt to clarify the question from Representative Eastman: Would it be someone meeting online getting 'catfished' where it's somebody that actually knows them, but they're impersonating a different identity. And then there's somehow a meetup, where for some reason, they're not able to see the person and they have potential sex and then lights come on and they realize its actually somebody known to them. Is that ... sort of what you're getting at? REPRESENTATIVE EASTMAN said he was inquiring about situations in which the [offender] was not seen physically due to darkness, smoke, or a physical barrier, for example. He asked whether "physical" would capture a scenario where someone was intending to avoid contact with a known individual; however, after the fact, it turned out to be an individual that he/she knew. 5:42:03 PM MR. STINSON said it would depend on the specifics of the scenario. He explained that if it was a situation in which someone was ambiguous about who they were engaging in sexual intercourse with but was otherwise consenting, [the proposed legislation] would not capture that. He reiterated that Amendment 4 was intended for a circumstance where someone was impersonating another physical person that was known to the victim and thereby gets his/her consent. 5:43:31 PM REPRESENTATIVE EASTMAN sought to clarify the class B felony reclassification, which did not appear to be specifically represented in the language in Amendment 4. REPRESENTATIVE TARR said she did not understand the question. REPRESENTATIVE EASTMAN sought to understand how the proposed amendment was reclassifying sexual contact by fraud to a class B felony. REPRESENTATIVE TARR replied, "It should insert it into the section where it's the sexual assault in the second degree, because sexual assault in the second degree is a class B felony. And that is not otherwise ... in the bill, but that should be the place where it gets inserted in statute." REPRESENTATIVE EASTMAN directed his previous question to a drafter from Legislative Legal Services to better understand how that reclassification was occurring within Amendment 4. 5:45:04 PM CLAIRE RADFORD, Attorney, Legislative Legal Services, Legislative Affairs Agency, explained that Amendment 4 would insert a new Section 2 into the bill, which would make sexual penetration by fraud a class A felony. Sexual contact by fraud was in the crime of sexual assault in the second degree, which was presently a class B felony, and would not be altered by the amendment. 5:45:35 PM REPRESENTATIVE KAUFMAN redirected the discussion back to "actual" versus "physical." REPRESENTATIVE TARR noted that the present wording was "physical identity;" however, "true" and "real" had also been suggested. She pointed out that "real identity" was utilized on line 9 of Amendment 4. 5:47:19 PM REPRESENTATIVE VANCE asked whether the existing language of "real identity" on line 9 and "physical identity" on line 6 would sufficiently capture the legislative intent or if further clarification was necessary. MR. STINSON reiterated that he found comfort in the word "physical" because the legislature was not trying to make it a crime for someone to lie about his/her "real identity" or "true identity," but the legislature was trying to stop a person from impersonating another physical person that was known to the victim. He added that he would not have an issue with "real physical identity" if the committee wanted to add that qualifier on line 6. REPRESENTATIVE TARR asked Mr. Skidmore to respond. 5:49:41 PM JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney General, Department of Law, said the challenge with all of those terms is that they had not been used in statute before. He added that he could not say whether one was necessarily better than the other. He maintained that his preference was to replace "physical" with "actual" or "real" because the legislative intent was to capture someone who was impersonating another specific person. He reiterated that ultimately, it came down to a policy call. CHAIR KREISS-TOMKINS asked Mr. Skidmore to provide an example of a scenario that would be captured under "actual identity," which "physical identity" would not capture. 5:51:18 PM MR. SKIDMORE said he could not come up with a specific hypothetical at this time. CHAIR KREISS-TOMKINS asked Mr. Stinson if he could provide an example. MR. STINSON expressed concern that "actual" could be interpreted more broadly than "physical" because someone's actual identity could be interpreted as a false name or other some other aspect. He maintained his belief that "physical" would better capture the intent, because "physical" indicated an immutable attribute that could not be lied about because it would be immediately observable. 5:53:44 PM REPRESENTATIVE EASTMAN asked whether someone could give consent if they had been "previously tricked" concerning the physical identity of the person that they [engaged in sexual contact] with. MR. STINSON inquired about Representative Eastman's meaning of "previously tricked." REPRESENTATIVE EASTMAN remarked: Is it a black and white situation like that where if someone is told and is led to believe one physical identity and that it comes out after the fact that there was a different physical identity - is the person able to give consent in that situation? Are there some circumstances in which they can give consent and maybe others where they can't? MR. STINSON asked for confirmation that Representative Eastman was asking about a situation in which consent was given under the false pretenses that would otherwise qualify as rape by fraud and then subsequently the person decided that he/she wanted to consent to a second act after finding out that the person was a different person. He questioned whether that captured the question accurately. REPRESENTATIVE EASTMAN clarified that he was focused on lines 7- 9 of Amendment 4. He remarked: I'm talking about the potential victim in this situation. Are there some circumstances and situations where they could give consent because, even though the potential offender is acting with reckless disregard, they actually would have consented if they had known and not been tricked? 5:57:03 PM MR. STINSON said the difficulty of framing rape by fraud with an affirmative consent framework was that the person did give affirmative consent, but they had been tricked. He expounded that the person would have consented to the act, but only by fraud or deception. To the extent that the individual was undisturbed by that fraud or deception, technically the law would be violated, but there would be a question of how it would get reported or prosecuted. He reiterated that this provision would apply to the use of fraud to obtain what would otherwise be consensual sexual contact or consensual sex, but the person then realized that he/she had been duped, which was what this provision was attempting to criminalize. 5:58:39 PM CHAIR KREISS-TOMKINS directed the discussion back to Amendment 4. 5:59:10 PM REPRESENTATIVE VANCE moved to adopt Conceptual Amendment 1 to Amendment 4, such that the word "physical" on line 6 would be replaced with "real". She believed that it would align with the language on line 9 and be less restrictive than "physical." Further, she opined that "real identity" would better capture who the person actually was as opposed to the person's physical appearance. CHAIR KREISS-TOMKINS objected. 6:00:51 PM REPRESENTATIVE TARR noted that the original language that had been submitted to Legislative Legal Services contained the word "true," which the drafters replaced with "real" [on line 9 of Amendment 4]. 6:01:12 PM REPRESENTATIVE STORY questioned whether the bill sponsor was supportive of the conceptual amendment. REPRESENTATIVE TARR said she was "okay" with it; however, she believed it would be a topic of further discussion. CHAIR KREISS-TOMKINS said he had concerns; nonetheless, he removed his objection. Without further objection, Conceptual Amendment 1 to Amendment 4 was adopted. 6:04:02 PM REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 2, which would delete "is" on page 2, line 9, of SSHB 5 and insert "would not have consented if the person knew the offender's real identity, but for the fact that they were". CHAIR KREISS-TOMKINS objected. 6:05:33 PM REPRESENTATIVE TARR expressed her opposition to Conceptual Amendment 2, because the bill language was drafted in a specific tense and the proposed conceptual amendment would "resituate" it. 6:06:10 PM A roll call vote was taken. Representatives Eastman voted in favor of the adoption of Conceptual Amendment 2. Representatives Tarr, Story, Vance, Kaufman, and Kreiss-Tomkins voted against it. Therefore, Conceptual Amendment 2 failed by a vote of 1-5. 6:07:08 PM REPRESENTATIVE EASTMAN removed his objection to the adoption of Amendment 4. Without further objection, Amendment 4, as amended, was adopted. CHAIR KREISS-TOMKINS invited final comment on HB 5. REPRESENTATIVE EASTMAN expressed concern that should HB 5 pass, otherwise innocuous actions between two consenting adults could be later construed "in a way that was not intended." 6:08:53 PM REPRESENTATIVE VANCE said she liked the bill but still had reservations. She committed herself to continuing the work in the next committee of referral. CHAIR KREISS-TOMKINS emphasized the importance of addressing sexual assault. Nonetheless, he expressed concern that as amended, the rape by fraud provisions could allow for more unintended consequences, ambiguity, and prosecutorial discretion that could capture scenarios outside the legislative intent. He said he was always troubled by further steps towards mass incarceration as a solution to public safety problems. 6:10:34 PM REPRESENTATIVE TARR agreed with the chair on the issue of long prison sentences. She recited the quote, "rape is like a murder where the victim survives," to emphasize the severity of the impact. She added that the goal was to make improvements without unintended consequences and to change the culture. 6:12:05 PM REPRESENTATIVE VANCE moved to report SSHB 5, as amended, out of committee with individual recommendations and the accompanying fiscal notes. Without objection, CSSSHB 5(STA) was moved from the House State Affairs Standing Committee.