Legislature(1999 - 2000)
02/24/1999 01:37 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
SB 5 - MISPRISION OF FELONY
SENATOR DAVE DONLEY presented a work draft for SB 5 that
establishes the crime of misprision and makes it applicable to
unclassified felonies and felony crimes against a person. The bill
makes the crime of misprision a class A or B felony, depending on
the severity of the crime witnessed. This version adds an
affirmative defense for witnesses who do not report a crime in a
timely manner out of fear they may be in danger if they do so, and
specifies that the state need not prove a person knew the class of
felony they witnessed in order to be prosecuted under this statute.
Number 052
SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the
committee substitute. Without objection, the committee substitute
was adopted.
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender
Agency, said the bill conflicts with the privilege of self-
incrimination, which gives any person who fears they may be charged
with an offense the right not to report the crime. SB 5 may result
in requiring a person who has nothing to do with an offense being
required to report it, while a person with some involvement in a
crime would not.
MR. MCCUNE proposed Alaska has other statutes, such as "hindering
prosecution," with which to prosecute a person who renders
assistance to a criminal by providing transportation, money, or
concealment.
Number 100
SENATOR PEARCE asked how Alaska would prosecute the Nevada case in
which a young man witnessed, but did not participate in a crime.
MR. MCCUNE replied in that case the young man provided
transportation to the perpetrator.
CHAIRMAN TAYLOR expressed concern that the intent of this bill is
to criminalize behavior similar to "abetting" a criminal, or being
an accessory to a crime, without actually participating in the
crime.
MR. MCCUNE explained to aid or abet a criminal involves complicity
in the crime and criminal intent. A person convicted as an
accessory can be punished in the same manner as the principal
perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution
statute requires intent and MR. MCCUNE replied it requires intent
to hinder the apprehension or prosecution of a criminal. CHAIRMAN
TAYLOR commented that the level of intent in SB 5 is one level
lower than that.
SENATOR PEARCE indicated her concern with situations of abused
women and children where there is knowledge and implicit support of
the abuse by family and community members. Part of her intent with
SB 5 is to see these cases prosecuted. She said she has no answer
to the self-incrimination question, but this is a widespread
problem within Alaska and, "I'm not convinced that we could use
'hindering prosecution' for the sorts of cases that I am thinking
about . . . "
SENATOR PEARCE remarked that it is unfair to allow children to be
abused because of a protection from self-incrimination. "I don't
care what the Constitution says in this particular case - it
doesn't work for me in this case."
CHAIRMAN TAYLOR said authorities are often constrained by a pattern
within dysfunctional families that keeps abuse from being reported.
He asked, "Are we going to be imprisoning moms because they didn't
go forward earlier?" SENATOR PEARCE replied the language on lines
12-14 of page 1 was inserted to provide an affirmative defense for
most of those cases, but it does not cover cases in which both
parents should be prosecuted. She said, "If either parent stands by
and watches while the other parent abuses the child, as far as I am
concerned, both parents should be prosecuted in some manner."
CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal
safety. SENATOR PEARCE said language had been inserted into the
bill to deal with that "fear factor."
Number 288
SENATOR HALFORD explained there is another factor; the children
themselves do not come forward for fear of losing one of their
parents, despite how deviant that parent may be. He said he did not
want to force the loss of both parents or compel the family to go
to court, instead of getting counseling. SENATOR PEARCE did not
dispute this point, but said, "We have to put some faith in the
prosecutors' . . . ability to decide which cases should be
prosecuted and which ones shouldn't." She said SB 5 would provide
a method to prosecute those who should be prosecuted. SENATOR
HALFORD concluded this is a difficult area of discussion.
SENATOR PEARCE agreed this is a difficult subject, but emphasized
she appreciated having a full discussion on the bill. She proposed
that in some cases those who should be prosecuted are family
members but not necessarily the parents of the abused child.
CHAIRMAN TAYLOR asked how the bill will affect counselors,
preachers, police officers and school teachers; the bill has a wide
sweep. SENATOR HALFORD said the bill only exempts lawyers.
Number 365
MS. ANNE CARPENETI, representing the criminal division of the
Department of Law, thanked the committee for the work done on the
bill in response to the concerns of the Department.
MS. CARPENETI reported the bill is still too broad and requires
victims of rape and domestic violence as well as spouses of child
abusers to report these crimes or be subject to a criminal
violation. The bill forces parents to report spouses to the
criminal justice system, rather than allowing them the choice to
pursue counseling or seek another solution. She suggested limiting
the offenses covered by SB 5 to murder, attempted murder,
kidnaping, arson and maybe first-degree sexual abuse of a minor.
The nature of these crimes offset some of the concerns raised
because these are the most serious crimes where victims are unable
to be heard.
SENATOR TORGERSON asked how a victim of domestic violence or rape
could be prosecuted if the victim's testimony would be the evidence
of the crime. MS. CARPENETI said a person is required to report an
offense unless he or she is the perpetrator and therefore covered
by the right against self-incrimination. SENATOR HALFORD said
parents who know their child is being abused are probably violating
present law but they are protected by the privilege against self-
incrimination. Consequently, "If they are the good parent, who
didn't know and now finds out and goes to a psychological
professional . . . and takes their advice . . . you can't claim
self incrimination - so the self-incrimination only protects the
guilty; it doesn't protect the parent who is truly operating in the
best interests of the child."
SENATOR PEARCE testified the intent of SB 5 is not to compel a rape
victim to make a report, but to require a witness of such a crime
report it.
SENATOR PEARCE suggested there has to be a way to get at recidivist
pedophiles and protect "the next child, or the next child or the
next child." She said it seems the committee is considering sexual
abuse of a child by a non-parent a worse crime than sexual abuse by
a parent. She does not think anyone subscribes to this view but
said, "That is what happens if we don't somehow deal with the
parent - they are just as culpable . . . "
Number 479
SENATOR HALFORD cited a real life example to illustrate his point
that, "it is very, very difficult to make a parent take an action
against their child for the protection of the future."
SENATOR DONLEY asked if deleting the portion of SB 5 relating to
class B felonies would give the bill a better focus. ANNE CARPENETI
said yes.
Number 525
SENATOR DONLEY moved Amendment #1: insert the phrase, "other than
a victim" on page 1, line 5 after the word "person." After some
discussion, he modified his motion to insert the phrase after the
word "person" on line 4, page 1. Without objection, the amendment
was adopted.
SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and
page 1, line 8, and page 2, line 7 "or class B felony," to focus
the bill on very serious crimes.
Number 557
SENATOR HALFORD suggested that the bill should specify the exact
crimes covered rather than use the statutory reference. He asked
how many crimes would fall under the scope of the bill. After
discussion, the consensus of the sponsor, the Department and the
committee was that the list of crimes would not be too long to
specifically name them in the text of the bill. SENATOR PEARCE
stated that her concerns would be covered if the bill encompassed
unclassified felonies.
TAPE 99-12, SIDE B
Number 592
SENATOR DONLEY withdrew Amendment #2. He suggested the committee
consider a conceptual amendment to limit the bill to unclassified
felonies and first-degree arson, and list the offenses specifically
in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's
idea as Amendment #3. Without objection, Amendment #3 was adopted.
SENATOR ELLIS asked how the new requirement for "timely" reporting
in the bill would compare with the previous requirement for
immediate reporting. SENATOR DONLEY observed that the requirement
for timely reporting allows for a more flexible application. MS.
CARPENETI agreed.
Number 553
CHAIRMAN TAYLOR reflected that the crime created in this bill is
difficult to differentiate from conspiracy and accessory. He said
the committee will work on another draft of SB 5.
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