Legislature(2021 - 2022)GRUENBERG 120

05/04/2021 03:00 PM House STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved HCS CSSB 28(STA) Out of Committee
-- Invited & Public Testimony --
Heard & Held
-- Public Testimony --
Heard & Held
-- Public Testimony --
Heard & Held
-- Testimony <Invitation Only> --
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved HB 163 Out of Committee
Moved CSSSHB 5(STA) Out of Committee
**Streamed live on AKL.tv**
            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                                                                   
     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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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]                                                               
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                                                               
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                                                               
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"                                                               
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.                                                                                     

Document Name Date/Time Subjects
HB 124 Sectional Analysis v. b 4.21.2021.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 124 Research LRS-21-120 4.27.2021 alt.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 124 v. B 3.03.2021.PDF HSTA 5/4/2021 3:00:00 PM
HB 124
HB 124 Fiscal Note GOV-EXE 4.19.21.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 124 Hearing Request Memo.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 124 Research LRS-21-120 4.12.2021.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
SB 28 v. I Hearing Request Memo 4.30.2021.pdf HSTA 5/4/2021 3:00:00 PM
SB 28
SB 28 v. I Sectional Analysis 4.30.2021.pdf HSTA 5/4/2021 3:00:00 PM
SB 28
SB 28 v. I Legislation.pdf HSTA 5/4/2021 3:00:00 PM
SB 28
SB 28 v. B Sponsor Statement 1.26.2021.pdf HSTA 5/4/2021 3:00:00 PM
SB 28
SB 28 v. I Fiscal Note.PDF HSTA 5/4/2021 3:00:00 PM
SB 28
HB 124 Letter of Support - Hykes 4.23.21.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 73 Fiscal Note PF-PFD-4-21-21.pdf HSTA 5/4/2021 3:00:00 PM
HB 73
SB 28 Fiscal Note - Exec Branch 4.26.21.pdf HSTA 5/4/2021 3:00:00 PM
SB 28
HB 142 Fiscal Note - DOR TT 4.28.21.pdf HSTA 5/4/2021 3:00:00 PM
HB 142
HB124 Sponsor Statement v. b 4.22.2021 - Revised.pdf HSTA 5/4/2021 3:00:00 PM
HB 124
HB 5 Explanation of Amendment G.6 5.4.21.pdf HSTA 5/4/2021 3:00:00 PM
HB 5