Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/15/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB194 | |
| SB222 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 194 | TELECONFERENCED | |
| += | SB 252 | TELECONFERENCED | |
| += | SB 222 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:55:47 PM
CHAIR FRENCH announced the consideration of SB 222. He asked Mr.
Svobodny to continue the sectional analysis he started at the
previous hearing, beginning with Section 8. He noted that
bookstores have contacted him to explain how this provision
would work.
RICK SVOBODNY, Deputy Attorney General, Alaska Department of
Law, said Section 8 expands a present provision that prohibits
electronic distribution of indecent material to minors to
prohibit any distribution of indecent material to minors. It's
more than just through the Internet. With respect to the
concerns articulated about determining a person's age, he said
that the state has to prove two elements - that the person
knowingly distributed and that they were reckless as to the age
of the victim. It's obvious if a person is 12 if they're
standing at the counter versus mailing something to an address,
he said.
1:58:43 PM
CHAIR FRENCH asked if he thinks that the prohibited material
described on page 4, lines 18-25 would be pictures or words.
MR. SVOBODNY replied the items that are listed come from the
statute prohibiting child exploitation. AS 11.41.455 requires
somebody to create a picture or a live sex show for somebody
under age 16. He noted that the Criminal Code Revision
Commission recommended including these things under the child
exploitation statute and it's been the law since 1980.
CHAIR FRENCH clarified that it is pictures or movies or live
shows, not words written in a book.
MR. SVOBODNY agreed.
CHAIR FRENCH noted that the statute has the word "depicts" and
asked if it would be clearer if it were limited to the sorts of
things just discussed with respect to unlawful exploitation of a
minor.
MR. SVOBODNY replied that was the initial intent and he believes
it would be clearer.
CHAIR FRENCH said they'd take the language and make it as clear
as possible. It may not eliminate First Amendment and bookseller
concerns, but it's a good start.
2:01:45 PM
MR. SVOBODNY said he doesn't believe that since 1980 there's
been a prosecution in this state for distributing written
material under the provisions in Title 11.41 or 11.61.
SENATOR FRENCH asked his reaction to the suggestion to put the
Miller test language into the bill.
MR. SVOBODNY replied his concern is that it could be very
difficult to meet the additional elements that are added to the
offense.
SENATOR WIELECHOWSKI commented that prosecutorial discretion
could account for the fact that nobody has been prosecuted under
this statute since 1980. He shares the concerns about protecting
First Amendment rights and prefers to err on the side of being
more explicit, not less.
CHAIR FRENCH said the committee would look at it once the more
descriptive language is inserted.
SENATOR COGHILL asked if the Miller language is in the packet.
CHAIR FRENCH relayed that the language says, "that the material
lacks serious literary, artistic, political, or scientific value
and that depicts the following actual or simulated conduct."
SENATOR COGHILL opined that removing the word "electronic" from
Section 8 made it clearer and inserting the Miller language
would make it less so. "Every time you add a word to statute …
that's one more word you get to argue over what the meaning is."
CHAIR FRENCH agreed.
MR. SVOBODNY clarified that since 1980 when that list was
enacted there hasn't been a prosecution of a book distributor.
He further explained that the section is intended to deal with
the situation of a person who is grooming a child by showing
them sexually explicit material in person as opposed to it over
the Internet.
2:06:46 PM
SENATOR COGHILL said he understands that but removing the word
"electronic" broadens the question.
CHAIR FRENCH agreed it's far broader.
SENATOR WIELECHOWSKI asked if a bookseller "knowingly
distributes" if they put a picture book on the shelf that they
believe has value under the Miller test and they know that kids
go there.
MR. SVOBODNY said the culpable state is to knowingly distribute,
which is to move from one person to another. A different catch-
all statute says there's an additional culpable mental state
regarding a child's age and that's reckless. The bookseller
would have to be reckless in that the person that they're
distributing to is under 16 years of age. He added that
recklessly is "a gross deviation from the standard of conduct
that a reasonable person would use under the circumstance."
SENATOR WIELECHOWSKI asked if bookstores will have to start
carding customers that buy certain books to make sure they're
over a certain age.
MR. SVOBODNY replied it's up to a jury to determine whether the
conduct is a gross deviation from the standard of conduct. He
can't say what juries would decide is reasonable for somebody
who is distributing pictures of people under age 18 who are
engaged in sexual activity or any of the other things in the
list. It's not simply a list of children that are unclothed;
it's specific acts, he said.
CHAIR FRENCH reported that the House judiciary committee added
the Miller language.
2:09:38 PM
MR. SVOBODNY said Sections 9 and 10 are conforming amendments to
strike the word "electronic." Section 11 adds the crimes of
human trafficking, distribution or possession of child
pornography, and distribution of indecent material to minors to
the group of offenses for which a person may not receive a
suspended imposition sentence. This is when a court makes a
determination to hold off on imposing a sentence on the
condition that the person does certain things. At the end of the
suspended imposition the person may apply to the court for a
certificate of discharge saying they have completed the
suspended imposition of sentence.
CHAIR FRENCH noted that the new statutory references are AS
11.41.360 - 11.41.370 and AS 11.61.125 - 11.61.128.
2:12:00 PM
MR. SVOBODNY said that Section 12 describes the conditions of
probation that a court may impose. DOL believes that the court
already has the authority, but this specifically gives the court
discretion to order a person to give their Internet address to
his or her probation officer, to prohibit a person from
establishing Internet sites that are directed toward children,
and to restrict a person from having contact with children under
age 18.
CHAIR FRENCH observed that many of these conditions are already
scattered throughout the statutes. He asked if there's anything
new or if this simply puts the court powers in one place.
MR. SVOBODNY replied he believes the court already has this
authority when there's a nexus between the offender's conduct
and the condition that the court has imposed, but it's spelled
out - as is the condition about communicating with children
under age [16]. This section also adds information about a
probation officer obtaining email addresses and requiring the PO
to give the information to the Alaska State Troopers.
MR. SVOBODNY said Section 13 amends the aggravating factor at
sentencing to allow the court to increase a sentence above the
sentencing range if the jury finds that the victim was
particularly vulnerable. Being under the influence of alcohol or
drugs are added factors that might make a person particularly
vulnerable. He noted that Dr. Andre Rosay with the UAA Justice
Center reported to this committee the staggering amount of
sexual abuse of a minor cases when the child was under the
influence of alcohol. That was the genesis of this aggravating
factor, he said.
2:17:04 PM
Section 14 adds two new aggravating factors in crimes against a
person in AS 11.41. The first allows the court to increase a
sentence above the sentencing range if the defendant was dating
or had engaged in a sexual relationship with the victim. This
goes to the vulnerability of the victims to those crimes. The
second allows the court to increase the sentence for sexual
abuse of a minor in the second degree when the defendant is age
18 or older. He noted that DOL recommended that the House amend
its bill to a 10-year age difference. The notion is that someone
who is 13 is more likely to be taken advantage of by somebody
who is 25 than by somebody who is 17.
CHAIR FRENCH asked what ages are specified in AS 11.41.436(a)(2)
making it a crime for somebody to have sex with another.
MR. SVOBODNY replied a person 16 years of age or older commits
sexual abuse of a minor if they engage in sexual contact with a
person who is under 13 years of age.
MR. SVOBODNY continued to say that Section 15 adds a new
provision to Alaska's sex offender registration law. A person
who is required to register in another state or jurisdiction
would have to register if they came to this state even if Alaska
does not have a matching sex-based crime.
He elaborated that Alaska has a tiered system under which a
person is required to register for either 15 years or for life
depending on the type of offense and if they are a repeat
offender. Other states have chosen to use a risk-based
assessment under which a person could be required to register
even though they had not been convicted of a sex-based crime. In
Minnesota, for example, a person who entered a home with the
intent to rape somebody may be convicted of burglary, but they
would still go through the assessment for a determination on how
long they had to register as a sex offender. If that person were
to move to Alaska, they would not currently be required to
register because they had been convicted of burglary, not a sex
offense. Likewise, making bodily contact with a minor with the
intention of arousing one's sexual desires is a crime of lewd
and lascivious acts on a minor in many states, but not Alaska.
MR. SVOBODNY highlighted that according to testimony in another
committee, the Alaska State Troopers receive between 300 and 500
calls per month from sex offenders in other states asking about
sex offender registration in this state. Approximately 150 of
those calls are from people asking if they would be required to
register if they were to move to Alaska. This new provision is a
way of saying they would need to register.
2:23:40 PM
SENATOR WIELECHOWSKI asked if there are equal protection issues
with a law like this because a certain act that's a crime in
another state might not be a crime at all in this state.
MR. SVOBODNY replied he doesn't know of any because it's a
regulatory rather than criminal matter when someone comes to
Alaska after having been convicted in another state. He added
that he recognizes that the U.S. Supreme Court and the Alaska
Supreme Court differed when they talked about the expos facto
nature of this law. The U.S. Supreme Court found that the Alaska
law was regulatory while the Alaska Supreme Court said it's a
punishment. He opined that when you're talking about people
coming to this state it seems that it's regulatory. A person who
commits a felony crime in another state would be unable to come
to Alaska and possess a handgun because they would be a felon in
possession of a handgun, even though Alaska might not have an
analogous felony crime.
CHAIR FRENCH cited an example from an ACLU memo. Someone who was
convicted in another state of having sex with a 17-year-old
would be required to register if they came to Alaska even though
the age of consent in this state is 16. Under this provision if
that person comes to Alaska they would be required to register
as a sex offender for 15 years for an act that Alaska doesn't
recognize as a crime.
MR. SVOBODNY agreed. He added that the age of consent in
California, which may or may not be a risk assessment state, is
17 so someone who is required to register there wouldn't escape
that requirement by moving to Alaska.
2:26:53 PM
CHAIR FRENCH said the risk assessment is intriguing because it
implies that someone in law enforcement has probed into a
person's background to come up with a reason to make them
register. Presumably it's a good reason that's designed to
protect the public. He asked if there's more to being a tiered
state than that a person is classified by their conviction on
certain crimes.
MR. SVOBODNY replied tiered states are more general as to the
conduct that would require a person to register as a sex
offender than risk-assessment states. Generally a risk
assessment hearing comes before an administrative law judge. The
state argues why it thinks the person's conduct warrants the
requirement to register as a sex offender for a certain period
of time. The offender makes the opposite argument and then an
administrative decision is made. He noted the federal government
is trying to drive all states to have a similar system. He
understands that the risk-assessment system was considered when
the Sex Offender Registration Act first passed but given
Alaska's geography, the decision was to go to a tiered system.
CHAIR FRENCH stated that before the next hearing he wants to
look at which states have the risk-assessment system and learn
how it works. Certainly we don't want people to move here just
because they wouldn't be required to register, but it's
troubling to think that someone could be put in jail for not
registering for an act that isn't a crime in this state, he
said.
2:30:10 PM
SENATOR WIELECHOWSKI asked how the current system works.
MR. SVOBODNY explained that if the out of state person has
committed an offense that has similar elements to an Alaska
offense, an administrative determination is made by the
Department of Public Safety as to whether the person is Tier 1
and has to register for 15 years or Tier 2 and has to register
of life. There is the ability for an administrative appeal of
that decision to appear in superior court and argue that the
administrative decision was wrong. The problem is when it's a
clear sex offense in other states, but the elements are not
analogous to any law in this state. For example, in the military
a person who commits a rape may be court-martialed for conduct
unbecoming the military. The person committed a rape but they
wouldn't be captured under current law as somebody who should be
required to register a sex offender.
2:32:07 PM
CHAIR FRENCH called a point of order to ask if a court-martial
for rape would require the person to register as a sex offender
in that state. He further asked if there is a federal sex
offender registry.
MR. SVOBODNY said yes and he believes that Title 18 includes
other jurisdictions - territories and the federal government so
if there's a military conviction on Elmendorf, for example, the
person may evade the Alaska sex offender registration
requirements.
CHAIR FRENCH observed that the committee needs more information
on that.
SENATOR WIELECHOWSKI asked if there is a list of the major sex
offenses that people commit in other states for which they
aren't required to register when they come to Alaska. I don't
object to increasing the registry but I don't want to punish
people for doing things that we've made a conscious policy to
say are okay, he said.
2:34:13 PM
CHAIR FRENCH asked Ms. Monfreda what issue comes up most
frequently when people from other states call to ask about
Alaska's sex offender registration requirements.
KATHRYN MONFREDA, Chief, Criminal Records and Identification
Bureau, Division of Statewide Services, Department of Public
Safety (DPS), said her duties include managing the sex offender
registry. She confirmed that her office receives about 150 calls
per month from offenders, mostly inquiring about whether or not
they must register. Some of the calls come from juveniles
because unlike Alaska, several states require juveniles to
register. She agreed with Mr. Svobodny that it's challenging to
make a determination about registering when someone has been
convicted of a military crime. Other questions relate to whether
someone must register if the crime for which they were convicted
isn't listed as a sex offense in Alaska. Electronic distribution
and online enticement are examples of convictions in other
states that haven't required registration here, she said.
CHAIR FRENCH reviewed the new subparagraph (D) in Section 15 and
observed that this would make her life easier.
MS. MONFREDA said it's not that simple because her office would
still need to make determinations about the length of
registration; about whether someone had been exempted from
registering because of risk assessments, which Alaska doesn't
have; and about whether other states have a provision to
lengthen registration time for noncompliance. Another issue
relates to tracking compliance if a person is convicted of a
crime in one state and later moves to another state before
moving to Alaska. This information can be difficult to gather
because some state registries aren't interested in tracking an
offender after they move from the state.
2:38:48 PM
MR. SVOBODNY pointed out that a problem with the proposed change
is that it doesn't talk about tiers. DOL has some language to
address that omission, he said.
CHAIR FRENCH said the committee looks forward to receiving the
amendment.
MR. SVOBODNY continued to say that the new provision in Section
16 is part of the federal law, which requires that child
pornography that has been collected must remain in the custody
of the law enforcement agency and the prosecuting attorney.
Discovery will not be limited but the material may not be copied
by the defense or anybody else. The idea is to make it less
likely that the material would be distributed or that it would
get back into the hands of the offender, both of which would
revictimize the child.
CHAIR FRENCH mentioned a memo that cites a Washington State
child pornography conviction that was overturned because the
defense was not able to view the evidence except at a state
facility. He hasn't read the case.
MR. SVOBODNY said he hasn't read the case either but he was
troubled that the court was reported to have said that [viewing
the evidence] could have been accomplished with better firewalls
because that sounds like the material would go out over the
Internet again.
CHAIR FRENCH said he's flagging that as a concern, but he
recalls that Mr. Steiner wasn't particularly worried about the
provision. He did highlight a concern about the expense of
moving experts to and from the location where the material is
held.
QUINLAN STEINER, Public Defender, Public Defender Agency, Alaska
Department of Administration, agreed that the expense of moving
experts would definitely be a concern. The way that the statute
is interpreted and the way that access to the evidence is
granted could also raise constitutional concerns, he said. It
would definitely raise a concern if someone from public safety
is required to be in the room when the defense council, the
experts, and the defendant are discussing the material. The
statute doesn't speak to that specifically.
CHAIR FRENCH asked if his concern centers on the extent to which
custody and control is taken.
MR. STEINER said yes because this rule change could be
interpreted in a wide variety of ways.
2:44:24 PM
JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said he
believes that the committee questions addressed many of the
issues that the ACLU is concerned about. He noted that the ACLU
does support including a Miller test to avoid potential First
Amendment issues. The other issue relates to the potential
constitutional problems with the right to a defense. Clearly
having the material in the control and custody of the state and
the prosecution is a significant impediment to defense issues,
he said. He cited the Murtagh case and noted that the state
supreme court ultimately ruled in favor of the defendant's
rights to a full defense. He urged the committee to look
carefully at the language to more appropriately balance the
issues.
2:46:24 PM
CHAIR FRENCH closed public testimony and announced he would hold
SB 222 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB222 letter.pdf |
SJUD 2/15/2010 1:30:00 PM |
SB 222 |
| SB222 Sectional Analysis.pdf |
SJUD 2/15/2010 1:30:00 PM |
SB 222 |