Legislature(1993 - 1994)
02/02/1994 02:20 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATOR HALFORD introduced HB 212 (SENTENCING:AGGRAVATING FACTORS) sponsored by REPRESENTATIVE EILEEN MACLEAN,and invited her aide, DAVID HARDING, to explain the bill. Number 048 MR. HARDING said the intent of HB 212 is to insure the most serious sentences for the crime of sexual abuse against a minor get levied when the offender is in a position of authority over the minor. He quoted the bill.0 as accomplishing this by adding sexual abuse of a minor to the list of aggravators to be considered at sentencing. In addition, he explained Section 2 furthers a similar effort of the 1992 Legislature in adding this to a list of crimes not to be referred to the three judge panel. MR. HARDING quoted REPRESENTATIVE MACLEAN as to her belief that an offender who was in an established trust relationship and breached that trust, deserves to face stronger penalties than a stranger who sexually abuses a child. She said it was the vulnerable nature of the relationship that warrants a more severe punishment, and she thought it more suitable to add the crime to the aggravator list rather than create an entirely different crime category. MR. HARDING suggested that MARGO KNUTH from the Department of Law could further explain the legislation. SENATOR DONLEY questioned whether the legislation was consistent with the philosophy of the other items exempt from the three judge panel review, and he further questioned the use of violence, or consensual touching, in the opinion on the legislation. After some discussion on modifiers, aggravators, and the provocation for the legislation, SENATOR DONLEY asked MS. KNUTH for some clarification. Number 103 SENATOR LITTLE, in reference to page 2, line 4, questioned the use of "extreme youth" in the description of a victim and was told it was in existing law. She asked some additional questions about Paragraph (18), Subparagraph (D) concerning the use of "position of authority" and was referred to a list of definitions on page 22 of AS 11.41.470 in the Alaska Statutes Supplement. SENATOR DONLEY asked MR. HARDING if he knew of any case, involving the "position of authority," that has gone to a three judge panel and was deemed inappropriate by REPRESENTATIVE MACLEAN. MR. HARDING didn't think it involved any specific instance, but it was more of an effort to make sure it was not to be mitigated to insure the most serious sentence for the offense. He described an event involving a teacher in REPRESENTATIVE MACLEAN'S district which precipitated the legislation. SENATOR DONLEY clarified the sentencing by a three judge panel was not really a factor in the case. Number 149 SENATOR HALFORD brought to the attention of the committee the resolution from the North Slope Borough School District and indicated the wording had designated "sexual contact of a student by a teacher as sexual abuse of a minor in the first degree;". He explained it was going about three steps further than just adding an aggravator. MS. KNUTH from the Criminal Division of the Department of Law, was asked to address two matters, the first being Section 2 of the bill which lists the aggravators which cannot be referred to a three judge panel. She explained that less than half of the list are assaultive or violent, and she gave some definitions for the listing of "most serious conduct" in Aggravator (10) of the list. MS. KNUTH, in reference to Aggravator (15), explained it would be three or more felonies, regardless of the type of cases, (17) is the pecuniary gain for the defendant, (20) is if the defendant was on furlough or release at the time of the new offense, and (21) relates to a history of similar offenses. MS. KNUTH thought it curious that (18) is the aggravators for sexual assault and sexual abuse cases in particular, but it is already specified in (18)(B) that a sexual assault or an abuse case committed against a minor, "and the defendant has engaged in the same or similar conduct involving the same or another victim who was a minor" would also not be heard by a three judge panel. She explained (18)(A), and (C) separated out minors as having plenty of authority for the legislation, and in terms of (18)(D), MS. KNUTH said REPRESENTATIVE ULMER had sponsored legislation several years ago that did make it a more serious offense for sexual penetration or sexual contact to occur by an offender in the position of authority or trust over the victim. Number 198 MS. KNUTH had researched reasons for the added aggravator in (18)(D) and found her answer "in all our sexual abuse of minor statutes, there are multiple ways the offense can be committed, but always against a child under the age of 13," and she reviewed the provisions for first and second degree offenses for both those under the age of 13 and of those 16 years old. She said the legislation created a new class for children ages 14 through 15, and she gave some examples of sexual abuse of children in this age range by those who are in the age range of 17 through 18. She concluded that the aggravators in (A) through (C) were needed for (D). SENATOR DONLEY asked if the three judge panel should be removed, but suggested situations when the potential review by the panel would be useful. Number 249 MS. KNUTH said there were arguments both ways, and she discussed with SENATOR DONLEY presumptive sentence, aggravators, class A felony for sexual abuse of a minor, unclassified sentence, stiff sentences, and the gap effect in the 16 to 18 year old. Number 297 SENATOR LITTLE asked about the three judge panel, and MS. KNUTH explained a defendant can petition for a referral to the three judge panel, which may or may not be interested in hearing the case. She also explained how the composition of the panel changes and whether or not they are conservative or liberal. She gave an example of the use of the panel, and how the panel can be affected by a possible backlash. MS. KNUTH explained taking a case away from the three judge panel is a fairly extreme thing to do, and she expressed surprise at the number of aggravating factors being taken from the three judge panel. She said it was a move towards harsher sentences, and she reviewed the messages being sent by the legislation, including "the protection of minors is an important societal goal." Number 358 SENATOR DONLEY spoke in support of the aggravator in Section D, including the "act of violence," and he asked if there were any situations in the sections where there is no violence. MS. KNUTH said none of the offenses had violence, but had penetration or contact, but violence would be charged separately as sexual assault in (18)(B). SENATOR DONLEY described the tendency for aggression in divorce cases to accuse the spouse of sexual assault, and asked if it would be affected by the legislation. MS. KNUTH explained there were separate offenses for the household and the legislation did not address them. Number 398 SENATOR LITTLE observed that sexual contact is very violent. MS. KNUTH explained there were different forms of violence, and they were identified differently, but she did concur with SENATOR LITTLE'S remarks. SENATOR HALFORD concluded there was no more testimony on HB 212, reviewed some positions on the bill, and asked for the will of the committee. SENATOR DONLEY spoke in support of the aggravator, but expressed concern about the three judge panel. He questioned MS. KNUTH about the addition of AS 11.41.434, 11.41.436, or 11.41.438, and she described them as "sexual penetration," "contact," and "contact with a closer age." They discussed whether there could be a middle ground with the removal of 11.41.438 from exemption, the ages of the participants, and the example of a sixteen year old baby sitter and a thirteen year old victim. SENATOR DONLEY spoke in opposition to 11.41.438 and suggested dropping it. SENATOR LITTLE defended leaving 11.41.438 in the legislation, and MS. KNUTH explained how all of the provisions would work together. Number 499 SENATOR HALFORD said he preferred not to drop 11.41.438 until he checked with the sponsor, REPRESENTATIVE MACLEAN. SENATOR DONLEY renewed his argument with the previous example of a sixteen year old baby sitter and a thirteen year old child where there was consensual touching. He asked SENATOR HALFORD his objections to having it reviewed by a three judge panel. MR. HARDING said he thought dropping 11.41.438 would be approved by REPRESENTATIVE MACLEAN. SENATOR HALFORD explained the bill had passed overwhelmingly in the House, and he expressed his support, as did SENATOR DONLEY. He said HB 212 would be held until the next calendar.
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