Legislature(2001 - 2002)

02/19/2002 01:37 PM TRA

Audio Topic
* first hearing in first committee of referral
+ 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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