Legislature(2001 - 2002)
02/19/2002 01:37 PM House TRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 405-CRIMES COMMITTED ON STATE WATERCRAFT CHAIRMAN KOHRING announced that the next matter before the committee would be HOUSE BILL NO. 405, "An Act relating to the prosecution of criminal offenses committed on or against ferries and other watercraft owned or operated by the state; and providing for an effective date." Number 526 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of HB 405, testified before the committee. He said the bill gives the state jurisdiction over state owned watercraft, including watercraft outside of state waters. He told the committee that a superior court judge dismissed the prosecution for a sexual assault that occurred on an Alaska ferry in Canadian waters. The court found no statutory authority to prosecute the crime, even though the defendant and the victim were both Alaskans. He said that the federal government has jurisdiction over U.S. vessels in Canadian waters under federal maritime law. He said the dismissal is a concern because it is unlikely to be prosecuted by either the federal or Canadian governments. Representative Meyer said that the federal government rarely prosecutes sexual assault cases, and Canada has little interest in prosecuting such a case. He said it is prudent to pass a law that will protect and defend passengers on Alaskan vessels. He said HB 405 would eliminate a loophole that would prevent the state from prosecuting such crimes in the future. REPRESENTATIVE MEYER introduced Anne Carpeneti from the Department of Law and told the committee that she was responsible for bringing the case to his attention. He said that she told him of a 16-year-old girl who was sexually assaulted on the MV Matanuska in Canadian waters. Upon reaching Ketchikan, the girl reported the crime to police authorities. The district attorney in Ketchikan presented the case to a grand jury, which then returned an indictment for one count of sexual assault in the first degree, one count of sexual assault in the second degree, and multiple counts of misdemeanor assault. Without a statute authorizing the state to prosecute in these circumstances, Alaska had no jurisdiction, said Representative Meyer. He said if the federal government will not protect and defend Alaskans, "then we must." Number 501 REPRESENTATIVE SCALZI said the bill speaks for itself. He said there is a jurisdictional problem in federal waters. He posited that the state should look out for its property and the people onboard. Number 496 REPRESENTATIVE WILSON said it was "very scary" to her and added that if "we were in other waters, there would be no one that would be able to do anything." She said she would like to co- sponsor the bill. Number 492 REPRESENTATIVE OGAN said the bill raises interesting legal questions. He asked that Annie Carpeneti join the sponsor at the table. Number 489 REPRESENTATIVE OGAN asked Ms. Carpeneti if there are "dicey legal issues" when a crime is committed in the sovereign waters of another country when "it is on our boat." He asked if there is case law that speaks to the issue. ANNE CARPENETI, Assistant Attorney General, Legal Services Section (Juneau), Criminal Division, Department of Law, answered that she has looked up federal jurisdiction, and the federal government does have the right to prosecute in this case. She said that she has not researched Canadian jurisdiction and added that the Canadians have not filed charges. She said that they would not likely do so. REPRESENTATIVE OGAN put forward the possibility that the Canadian government did not file charges because the ship had not stopped in a Canadian port to file charges with the Canadian police authorities. He said he did not want to see sex offenders getting away, but he wondered what authority the state had in the matter. Number 480 MS. CARPENETI said there are three possible jurisdictions in the case. She said the federal government can prosecute under maritime jurisdiction, and it has statutes prohibiting sexual assault. The Canadian government can prosecute, and Alaska can prosecute. She said the ferries are [State of] Alaska-owned property and they carry Alaskan crewmembers as well as Alaskan passengers and tourists. Ms. Carpeneti said the case law speaks to whether or not there is enough connection to a jurisdiction "for it to satisfy concerns of due process." She said it is clearly fair for Alaska to prosecute this case. REPRESENTATIVE OGAN said he would be interested to see some case law research on the matter. MS. CARPENETI said she could share some of the research she has on the issue. Number 442 REPRESENTATIVE WILSON asked about the letter from the Inlandboatmen's Union of the Pacific that was in the bill packet. She pointed out the question from line 4 that asked, "Why should we have to resort to the feds at all?" she asked Ms. Carpeneti to address the question. MS. CARPENETI said it seemed the idea of the question was, "Even though the federal government could prosecute this crime, why shouldn't Alaska be able to do so too?" She said the state is prohibited from pursuing prosecution if another jurisdiction has already done so. She said Alaska is not trying to stack a second criminal prosecution; at this point no one has prosecuted. REPRESENTATIVE KOOKESH said the way he looked at it, this bill would offer a third option to the state. He said if the federal government or Canadian government pursues prosecution, it would be fine. If neither does, Alaska should have the ability to do it. He said that is the intent of the bill and it makes sense. Number 420 REPRESENTATIVE SCALZI said his knowledge of maritime law is that the state can write law as long as it does not supersede the federal law. He said just because a ship enters another country's waters, federal maritime law does not fall away onboard ship. He said he does not believe that maritime law and state law would be conflicting. MS. CARPENETI said Representative Scalzi's summation was correct, but she said the state and federal government could exercise concurrent jurisdiction in an area like the one in question. She said this is dependent on the fact that the federal government has not preempted and taken charge of the case. She said that in this case, it has not. Number 406 LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference. She said the agency does not support or recommend HB 405. She said jurisdiction over crimes allegedly committed on U.S. documented or registered vessels in foreign waters already exists. That jurisdiction exists in federal courts or in the courts of foreign nations. She said crimes allegedly committed in waters of other states fall under the jurisdiction of that state. She gave a scenario of a crime committed by a Washington State resident, upon a Washington State resident, on an Alaskan ferry tied to the dock in Bellingham, Washington. She told the committee that under HB 405, the crime would come under the jurisdictions of the federal, Washington State, and Alaska courts. MS. WILSON said there are questions in the Bellingham scenario of whether or not it was a constitutional exercise of jurisdiction, and she added that perhaps it could be challenged. She said legislation proposed for one particular case often is not the best approach. She said the bill is overly broad and the agency does not support it. Number 388 REPRESENTATIVE WILSON asked Ms. Wilson what she would suggest Alaska do in the sexual assault case in question. MS. WILSON said Alaska should promote that either the federal or Canadian government prosecute the case. REPRESENTATIVE WILSON asked Ms. Wilson if she was saying that Alaska should try to talk another country or the federal government into doing something, instead of doing something itself. MS. WILSON said, "Under that circumstance, yes." CHAIRMAN KOHRING said he identified with Representative Wilson's concerns and told the committee that there was a loophole in the law. He said Alaska should have a statute to be able to take action in these types of circumstances. He said another similar incident might get thrown out of court without this legislation. REPRESENTATIVE WILSON raised the question of "Where would we be if this was our wife or daughter?" Number 368 REPRESENTATIVE OGAN said his concern was that the appropriate jurisdictional questions be answered so that if this were to happen, the case would not be thrown out. He asked Ms. Wilson if there are jurisdictional conflicts if a ferry is tied up in a Washington State port and a crime is committed and reported to Washington authorities. MS. WILSON said she could see the potential for a jurisdictional struggle. REPRESENTATIVE OGAN said that it is inconvenient for a ferry to pull into a port to report a crime, even though that might be the proper jurisdiction. Number 345 REPRESENTATIVE KOOKESH said jurisdictional fights are good. In that way, at least someone will prosecute. REPRESENTATIVE OGAN asked what would happen if Alaska did not like the punishment handed down by one of the other jurisdictional courts. REPRESENTATIVE KOOKESH said that it does not matter. He said that with HB 405, if there was no jurisdictional fight, and no other court were to step in, Alaska would be able to prosecute. MS. CARPENETI responded to one of Ms. Wilson's comments. She said that Alaska has prosecuted under similar circumstances before, and the jurisdictional issues had not arisen until recently. She told of a similar case where a crewman was assaulted in Canadian waters. She said that she expects the jurisdictional issue to be raised in that case. She said that there were no jurisdictional issues raised before recently, but she expects more to be raised in the future. Number 320 REPRESENTATIVE WILSON moved to report HB 405 out of committee with individual recommendations and zero fiscal notes. REPRESENTATIVE MASEK asked if the bill had been referred to the House Judiciary Standing Committee, since she did not feel comfortable releasing legislation without some of the questions being fully resolved. CHAIRMAN KOHRING said Ms. Wilson cast some doubt over the bill, but said that a serious crime has gone unpunished. He said that he felt the bill could address the issue and called it a "potential tool." Number 302 CHAIRMAN KOHRING asked if there were any objections to moving the bill from committee. There being no objection, HB 405 was moved out of House Transportation Standing Committee.
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