Legislature(1997 - 1998)
03/24/1998 09:15 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 323(JUD)
"An Act relating to sexual offenses, to those who
commit sexual offenses, and to registration of sex
offenders; amending Rule 6(r)(2), Alaska Rules of
Criminal Procedure; and providing for an effective
date."
Co-Chair Sharp turned the floor over to Senator Pearce,
sponsor of the bill to give her testimony. Her statement
was as follows:
"...The use of children in the production of sexually
explicit material including photographs, films, videos and
computer images is a form of sexual abuse that can result in
physical or psychological harm to the children involved."
"Individuals who utilize children as sexual objects or are
sexually attracted to children, often seek out and collect
sexually explicit material for their own sexual
gratification. Access to the Internet has become one of the
preferred methods of distributing and collecting child
pornographic material. Several investigations across the
country have revealed thousands of pieces of child
pornography in the hands of child pornographers."
"Congress passed the Child Pornography Prevention Act of
1996 and several states are taking action to strengthen
their pornography laws. The Alaska penalty for distribution
of child pornography is not more than five years, but law
enforcement officers are encountering problems in trying to
prove distribution. Offenders are often charged with, or
plead down to Possession of Child Pornography, which is a
Class A misdemeanor offence with a penalty of not more than
one year of prison. [This is] unless the offender is
convicted of more that one count and receives a consecutive
sentence."
"SB 323 increases the offences for possession and
distribution of child pornography to a Class B felony
offenses punishable by not more than ten years in prison."
"The bill also creates the offense of Indecent Exposure in
the First Degree if the offender knowingly masturbates
within the observation of a person under 16 years of age.
This crime would be a Class B felony. The bill makes the
existing offense of indecent exposure to Indecent Exposure
in the Second Degree. The penalty for this offense is
increased to a Class C felony when committed before a person
under 16 years of age, and a Class A misdemeanor when
committed before a person 16 years or older."
"The bill requires sex offender registration for the
offenses of indecent exposure in the first and second degree
and for the possession of child pornography. Currently,
only offenders who are convicted for the distribution of
child pornography are required to register."
Senator Pearce then told the committee she introduced the
bill at the request of an officer with the Anchorage Police
Department. She said that officer was linked to the meeting
via teleconference from Anchorage. She requested the
committee to have an opportunity hear Officer Klinkhart talk
about the reason he came and asked for the bill to be
introduced.
OFFICER GLEN EDWARD KLINKHART was invited to speak by Co-
Chair Sharp. His testimony was as follows:
"The reason that I became involved with this prior to
joining the police department I spent some fifteen years as
one of the state's more active computer people. [I] joined
the force about two years ago and much to my surprise, I
became involved in several cases involving high tech crimes.
I imagined that my role would probably be in chasing down
teen-age hackers and people that were moving decimal points
in their businesses - that sort of thing. Much to my
surprise, I became involved in assisting agencies including
the APD, the US Customs Service, the Secret Service, Palmer
Police Department and the Alaska State Troopers in cases
involving crimes against children. This came as a bit of a
shock to me. I didn't imagine even in my experience with
computers that this sort of thing was nearly as prolific as
it is."
"Basically, a quick synopsis of some of the cases that we've
worked: I have a couple of cases that are currently open
that I can't talk about. But of the ones that I can, one
that primarily started this was the case of an Eagle River
man."
"This particular man had been posting or putting information
out on the Internet that he had pictures to trade. By
pictures, I mean these were not just photographs. These
were actual computer images - computer photographs of nude
children. In fact, his preference (most of these people
have a preference) was for young females between the ages of
five and about sixteen. These pictures would range
everything from full frontal nudity to actual sexual acts."
"Working with US Customs on this particular case, it turned
out that this case and most cases that we find even here in
Alaska aren't just localized. They don't just start here
they don't just end here."
"In this particular case, Hawaii had served a search warrant
on a gentleman they had found literally hundred's of
pictures of child pornography. From there they discovered
this person was trading - actually exchanging picture for
picture with a gentleman from Indiana, I believe."
"The gentleman in Indiana was a particularly lowesome
individual. This particular person was having sexual
encounters with his stepdaughter. He was getting her
drugged and drunk and was then sexually assaulting her and
video taping the act. He then would post them on the
Internet, these photographs."
"That caught the eye of the gentleman here in Eagle River
who thought that that was pretty neat and began exchanging
information."
"He actually put a computer system on the Internet that
allowed him to trade his photographs like trading baseball
cards in a sense. 'I'll give you two of these for two of
those.' He was pretty slick, really utilized the
technology."
"It used to be that these people who dealt in this kind of
child abuse would have to go underground. There were
underground newsletters. It was actually very hard to deal
with, which is why US Customs dealt with it because most of
the child pornography was coming from third world countries
or parts of Europe. Now, because of the technology, you
could be anywhere and be able to have access to it."
"To make a long story short, we were able to, using
computers, using technology and good old police work, serve
a search warrant on this particular gentleman in his house."
"In his house we discovered a computer which had over 8700
photographs of nude juvenile females. Those ranged from
full frontal nudity, probably the least offensive, to actual
children engaged in sex. 8700; I don't know if Senator
Pearce brought her big pile of paper with her today, but
next time you are in your photocopy room, stack 17 reams of
paper on top of each another and you'll get a good idea as
to how many pictures we're talking about. This is not just
one or two, this isn't just an accidental, 'Oops, Look what
I came across on the Internet.' These are people who are
actively seeking this stuff out."
"This particular gentleman I could not charge him under
state - or I didn't feel it right to charge him with a
simple A misdemeanor for this sort of thing. He was also
involved in some other activities including wire fraud and
mail fraud. We ended up having to go to the Feds. We ended
up having to work with the US Attorney and the federal
system, which luckily here in Anchorage works fairly well
because they're good people and they were easy access.
However, we're finding other investigators don't have that
opportunity - don't have the ability to be able to have
access to the federal government. In most cases we find
that it is faster and more efficient to deal with it on a
statewide level."
"This is just one example. I have several cases that we're
working on. I just did a search warrant last week on a
similar case."
"We have officers now that as our officers are becoming more
technically savvy as we're trying to train them. We're
starting to see more of this because we're able to look for
it. No longer are we going to go in and find these people
after they've sexually assaulted children and find the
photographs. We're now being a little more pro-active in
being able to find them with the photographs before they go
out and actually assault children."
"That was the primary reason why I felt it was necessary to
talk to somebody like Senator Pearce and be able to bring
this sort of problem to the forefront and give law
enforcement - we already are learning the tools and have the
technological tools to do this. We just are looking now for
some help from the people of the State Of Alaska to give us
some laws that we can work with and be able to in a sense
stop these people from continuing to abuse our children."
"Just to give you an idea of how widespread this is, I'm
currently on-line on the Internet even as we speak and
looking at people from Alaska... I've got people from
Alaska right now who are in such areas as let's see, "Family
Sex". That's an area where people can get pictures of family
members engaged in sex. There's a person right now from
Kenai who's logged on who's in an area called "Double
Penetration". At any time day or night I can log on here
and find people from Alaska who are peddling this sort of
filth."
"Its unfortunate that one of the great things about
technology is it gives us more opportunity. The bad think
is that it gives the bad guys more opportunities. They're
trading this stuff, like I said, just like baseball cards.
I'm just asking for some help and some support here in being
able to track these people down and let them know the people
of Alaska just are not going to stand for this."
This concluded Officer Klinkhart's testimony.
Senator Donley asked what it was about the federal law that
was different from the state law that encouraged the officer
to seek federal prosecution. Officer Klinkhart explained
that the crime was a felony under federal law. He continued
that given his druthers, he wanted to make sure that the
particular gentleman got the best opportunity that the law
would allow.
Senator Phillips said he knew that the individual had been
convicted and a sentencing hearing was scheduled for some
time this month. He wondered if that had taken place yet,
and if it had what the sentence was. Officer Klinkhart
responded that he would be sentenced on Thursday. Looking
at the plea agreement, Officer Klinkhart said the sentence
would be between 25 and 33 months in jail. Like a lot of
cases involving abuse of children, he continued, they found
that the ability to plea the sentences down was a good tool.
This was because it still allowed the judiciary branch of
the government to work effectively, but also allowed in the
real world, for young victims to be spared the court
proceedings.
He shared he was especially grateful for the plea provision
in this case because there were sixteen families with girls
who were victims of this particular gentleman in Eagle
River. He was pleased that they didn't have to bring the
sixteen girls into court and put them on the stand, some of
who were as young as three years old. He appreciated having
the law with teeth, yet also having the ability to lessen
the charge and get the perpetrator to work with law
enforcement thus avoiding the necessity of subjecting the
victims to a trial.
Senator Pearce wanted to note for the record that the
committee had a letter from the University of Alaska-
Fairbanks Police Department and one from the Chief of Police
of the APD in support of the bill. She added she had
received verbal support from a number of other police
departments across the state. She pointed out that the
support from APD was not just from Officer Klinkhart, but
from the entire department.
There were no further questions of the sponsor or APD
officer.
Senator Pearce moved for adoption of Amendment #1. She
explained the amendment, which would delete the offense of
Indecent Exposure in the Second Degree if committed before a
person sixteen years or older, from the sex offender
registration statute. She said this was because most of the
sex offenders required to register had committed felony
offenses. The Department of Correction had brought this to
her attention, she said, because they wanted to be
consistent. In talking to the drafter, she felt it was a
mistake as they put the bill together.
Amendment #1 was adopted without objection or discussion.
Senator Pearce then offered a conceptual amendment for
discussion of the committee. She said the Department of Law
had pointed out Sections 13 and 14 (Page 5 Lines 5-11.)
Those sections stated that when five years had passed after
a teacher had been discharged for conviction of one of these
crimes, he or she might petition the department to reissue a
teaching certificate in spite of the conviction. One of the
Governor's bill that dealt with child abuse, she said,
deleted that ability for a teacher to apply to be reinstated
five years after being convicted of one of these felony
charges.
She listed the charges as Distribution of Child Pornography,
Possession of Child Pornography, Indecent Exposure in the
First Degree, Indecent Exposure in the Second Degree,
Unlawful Exploitation of a Minor, Indecent Viewing, Sexual
Abuse of a Minor in the First, Second, Third and Forth
Degree. In her opinion, someone who had been convicted of
one of these crimes probably shouldn't be allowed back into
the classroom even after five years.
She then moved to adopt a conceptual amendment to remove the
ability for a person convicted of one of the fore-mentioned
crimes to petition for reinstatement of a teacher's
certificate. According to the Drafter, the necessary
changes would effect Sections 13 and 14. The areas of those
sections that allowed the petitioning for teacher's
certificates would be deleted, she explained. She told the
committee the motion needed to be conceptual because there
might be other statutory sites which would also be effected
and need to be changed.
Co-Chair Sharp ordered the conceptual amendment adopted, as
there was no objection. He requested staff work with
Senator Pearce to incorporate it into the new Senate Finance
CS.
Senator Donley asked if a representative of the DOL was
available to answer questions. ANNE CARPENETI came to the
table. Senator Donley pointed out that this was a
complicated area of the criminal statutes. He told that
because of the significant changes this bill would make to
existing law, he wanted to hear the department's opinion.
Ms. Carpeneti responded saying the DOL believed these were
serious offenses and there was good reason for raising the
level of seriousness for some of the offenses. However, she
voiced concerns that some of the offenses were being raised
too high of a level.
She gave an example of the crime of Possession of Child
Pornography, which would be raised to a Class B Felony.
That would be the same level as Distribution of Child
Pornography and Production of Child Pornography, she pointed
out. She said the departments had concerns that the
behavior being addressed was not the same level of
seriousness. Whether possession is as serious as production
was an issue the department wanted addressed.
Similarly, Indecent Exposure in the First Degree under the
bill was the same in the Governor's child protection bill,
according to Ms. Carpeneti. In that bill, the offense was
set at a C Felony, in this bill it was a B Felony, making
the offence the same level of seriousness as Sexual
Penetration of a 13-year old. The department disagreed as
to whether they carried the same level of seriousness.
She suggested the committee consider making Indecent
Exposure in the First Degree as Class C felony and
Possession of Child Pornography a Class C felony.
Otherwise, she stressed the acts were serious and didn't
disagree that the acts should be raised, but not to that
level.
Senator Pearce told the committee the issue had been
discussed. One of the reasons she and the APD officer
decided to raise the possession of child pornography level
was because of the difficulty in proving distribution. The
officers had found it difficult to put together a case
against an individual they believed to be involved in
distribution, but felt they could use the possession charge
in the level were serious enough to incur adequate
penalties. She emphasized, "Why else would anyone have 8700
pictures if they weren't trading them or doing something
with them." She said it didn't make a lot of sense to keep
that many pictures under the bed.
She continued saying, law enforcement was interested in
having the higher degree of penalty and if they needed to
use in plea cases they could avoid making young children
testify. She noted that to bring three and four-year olds
to trial was very difficult on the children. For this
reason, they wanted the higher penalty to use as a tool.
Senator Donley said that sometimes when looking at
particularly heinous crimes such as these, he had concerns
over losing sight of the big picture of the criminal
statutes. He stressed the importance of actual acts of
physical violence and said he tried to compare changes to
other areas to the actual violence. He said he was relying
on the DOL to point out whether the legislation would by-
pass other areas of violence. They should keep up with the
other crimes, he felt.
Ms. Carpeneti said she understood his point and that she had
been comparing the crime to other crimes involving the
sexual abuse of minors. Sexual Assault of a Minor in the
Second Degree was also a Class B Misdemeanor, which included
sexual penetration of a 13 to 15-year old child by a person
over age 16. She warned that when trying to set the levels
of what a crime should be, it was important to keep them in
some sort of prospective. She understood the concerns about
the difficulties in proving distribution of child
pornography and the desire to have at least a felony charge
for prosecutors to fall back on. That was why she suggested
making the possession charge a Class C felony rather than a
Class B felony. She pointed out that currently, the charge
was a Class A misdemeanor, so the change to a Class B felony
would be a step in the right direction.
Senator Donley asked if there where any acts of violence
against children, or for adults for that matter, that would
be less than the mere possession of these items. Ms.
Carpeneti replied that Assault in the Third Degree was a
Class C felony.
Senator Donley wanted to know if there was a charge of
Assault in the Third Degree against children. Ms. Carpeneti
said the charge could include physical assault against
children not of a sexual nature. Senator Donley stressed to
the committee that his worry was that the actual physical
violence against children was a lesser offence than the
possession of these heinous materials. He felt that the
crime of a violent offence against a child should be as
serious as possessing this kind of material. He spoke of a
bill he submitted in 1990 to allow prosecution as a felony
of violent crimes against children. He referred to
permanent disfigurement to children. He wanted to keep the
levels in line with the various offenses and prevent the
people who commit the crimes lighter than those who just
think about committing the crimes.
Ms. Carpeneti pointed out to the members there was a bill,
SB 218 sitting in the committee, which did address problems
with child homicide. There were other bills in the
Legislature this session they could look at.
Senator Pearce said she understood what Senator Donley was
saying, but pointed out that in order for there to be child
pornography, somebody had to take a picture of the child.
To her, that was just as invasive as an actual act of
violence - it was an act of violence against the child. In
her mind, this was just as violent as striking a child. She
added that this created the same and perhaps worse
psychological damage to the children in the future.
This concluded discussion on this legislation.
Senator Pearce made a motion to move Senate Finance
Committee Substitute for SB 323 from committee with
individual recommendations and accompanying fiscal notes.
There was no objection and Co-Chair Sharp ordered the new CS
be reviewed and approved by Senator Pearce before sending it
to the Senate Rules Committee.
Senator Pearce publicly thanked Officer Klinkhart for
bringing the matter to the Legislature's attention. She
acknowledged the great deal of time he put into the
legislation.
Co-Chair Sharp said it had been brought to his attention
that SJR 42, while in the previous committee, did not
receive public testimony from all interested parties. He
announced his intention to assign the bill to a subcommittee
for the purpose of taking public testimony via
teleconference. After the public hearing process had been
completed, the bill would be brought back before the whole
committee, he announced. There was some discussion as to
who would be on the subcommittee and Co-Chair Sharp said he
would name the subcommittee chair and members at a later
time.
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