Legislature(2013 - 2014)BELTZ 105 (TSBldg)
01/30/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Overview: Department of Law | |
| SB22 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 22 | TELECONFERENCED | |
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
2:04:09 PM
CO-CHAIR COGHILL announced the consideration of SB 22.
ATTORNEY GENERAL GERAGHTY said the most important theme in SB 22
is to pursue vigorously the Governor's goal of reducing domestic
violence, sexual assault, and sexual abuse of children in the
state. It's a shameful epidemic in the state and more should be
done to prevent it. The bill is another step to strengthen the
laws and accomplish this goal.
One of the provisions in the bill relates to a recent decision
by the Alaska Court of Appeals, which the administration
believes misinterpreted the legislature's intent in adopting
increased ranges for persons convicted of sex felonies. The bill
seeks to clarify the law in a manner consistent with the
legislative intent. The bill also closes a gap in the sexual
assault statutes and prohibits probation and parole officers
from having sexual relations with persons on probation and
parole. Another provision changes criminal procedure to protect
victims of domestic violence, sexual assault, and sexual abuse.
For example, requiring a hearing before a judicial officer
before releasing a person arrested for a bail violation or
domestic violence crime. It also broadens the protection for
these victims from the use of evidence of past and future sexual
misconduct. The bill also proposes to amend the procedure for
addressing a witness's claim of a Fifth Amendment privilege. If
immunity is granted by the state, the trial judge is required to
assess the credibility of the witness, and the state is allowed
to appeal that decision to a trial court.
2:08:25 PM
JOSEPH MASTERS, Commissioner, Department of Public Safety (DPS),
expressed pleasure at the opportunity to help introduce SB 22.
He said it was a steadfast commitment of DPS to end the epidemic
of domestic violence and sexual assault in the state. This
legislation builds on that commitment by strengthening the
investigative tools available to law enforcement agencies, and
broadening the authority of investigators to intercept
communications in sex trafficking cases. It also protects young
sex trafficking victims who are often involved in prostitution,
and strengthens the penalties on the demand side by requiring a
person who preys on these victims to register as a sex offender.
The bill provides additional protections for victims and
survivors of domestic violence, sexual assault, and stalking. It
allows victims of human trafficking, sex trafficking, and
unlawful exploitation of a minor to apply for violent crimes
compensation. Finally, SB 22 helps in the investigation of child
pornography cases, online enticement of a minor, and unlawful
exploitation of a minor by allowing the attorney general to
designate another attorney in the office to evaluate
applications that Troopers have for administrative subpoenas to
obtain business records from ISP providers.
2:11:38 PM
At ease
2:13:14 PM
CHAIR COGHILL reconvened the meeting and asked Ms. Carpeneti to
introduce herself.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL), introduced herself and said she would
provide a sectional summary of the bill.
CHAIR COGHILL informed the committee that he asked Ms. Carpeneti
to provide a general overview of the bill to identify the theme-
based issues that would be topics of discussion. He requested
the members to ask questions to clarify policy areas but hold
the discussions for a future meeting.
MS. CARPENETI said she identified three themes in the bill: the
Governor's pursuit of some improvement in the rates of sexual
assault, sexual abuse, and domestic violence in the state;
supporting victims' rights; and making the criminal justice
procedure more efficient.
Sections 1, 20, and 21 are designed to overturn the majority
decision of the court of appeals in Collins v. State, 287 P. 3d
791 (Alaska App.2012). Collins mistakenly interpreted
legislative intent in 2006 legislation, and adopted lower
standards for referring sex offenders to a three-judge
sentencing panel.
CHAIR COGHILL noted that the letter of intent from the 2006
legislature was included in the packets.
MS. CARPENETI offered to discuss the details, and Chair Coghill
deferred the discussion until the committee had an opportunity
to debate the issue.
Section 2 eliminates the statute of limitations for a victim of
sex trafficking or human trafficking to bring a civil action for
damages against the perpetrator.
Sections 3, 4, 5, and 6 fill an unintended gap in the sexual
assault statutes. The effect would be to make it a class C
felony for a probation or parole officer to engage in sexual
penetration with a person on probation or parole or a class A
misdemeanor for a probation or parole officer to engage in
sexual contact with a person on probation or parole. The
definition of "probation officer" is sufficiently broad to
include an individual who might not be appointed by the
commissioner of corrections. This is in response to a recent
situation in Anchorage involving an employee of the Alcohol
Safety Action Program (ASAP) under contract with the court to
provide supervisory services to people who participate in
therapeutic courts.
2:18:03 PM
SENATOR WIELECHOWSKI asked if this applied only to someone under
the direct supervision of a probation or parole officer.
MS. CARPENETI clarified that it would apply to any person that
the probation or parole officer knew or was reckless with regard
to that person being on probation or parole.
SENATOR WIELECHOWSKI observed that this would make it a crime
for a probation officer to engage in sexual penetration or
sexual contact with a spouse who is on parole.
MS. CARPENETI acknowledged that the exception of marriage in
that circumstance was not part of Alaska law, but it probably
should be addressed and excepted.
CHAIR COGHILL asked if the prohibition would extend to third-
party custodians.
MS. CARPENETI said no; it applies to probation and parole
officers and defines that as somebody who occupies the role of a
probation officer, even though he or she might not be appointed
by the commissioner of corrections.
Section 7 fills an unintended gap in the law that prohibits a
person ordered by a court not to contact a victim or witness as
part of a sentence or condition of release. It prohibits a
defendant who has been ordered by the court not to contact a
victim or witness, but who has not been released from jail, to
refrain from contacting the victim or witness. This conduct is a
class A misdemeanor. She noted that in several of these cases
the defendant couldn't meet bail and from jail made repeated
calls to the victim or witness. In one case, the defendant made
dozens of calls directing the victim to undermine the
prosecution of the underlying case.
Section 8 addresses the Governor's goal to diminish the demand
side of prostitution offenses. This section allows the state to
forfeit property of a patron of a prostitute if the property was
used to institute, aid, or facilitate prostitution, or was
received or derived from prostitution. Under current law,
property used in sex trafficking offenses is subject to
forfeiture, and a person who commits felony level prostitution
(being a patron of a child who is a prostitute) can have their
property seized. This would expand that to all patrons of a
prostitute.
SENATOR WIELECHOWSKI observed that the potential ramifications
of this section were that a patron who drove a prostitute to his
multimillion dollar home could be charged with a class B
misdemeanor and required to forfeit both his car and home.
MS. CARPENETI agreed that potentially could happen.
CHAIR COGHILL expressed reservations about the scope of that
provision.
2:23:00 PM
SENATOR DYSON questioned what might happen if the patron used a
borrowed car.
MS. CARPENETI said the procedure is called remission. A person
with an ownership position in an automobile that the state wants
to forfeit can explain the situation to the judge.
Section 9 removes the statute of limitations for criminal
prosecution of people who have committed sex trafficking, human
trafficking, and distribution of child pornography.
Sections 10, 24, 25, and 26 would allow a court discretion, in
releasing on bail a person in connection with a crime involving
domestic violence or civil protective orders, to require the
defendant to carry GPS monitoring according to guidelines
adopted by the Department of Public Safety (DPS). She noted that
this had not been done and the guidelines had not been
considered.
CHAIR COGHILL opined that the debate on this provision would
center on the cost and accountability.
SENATOR WIELECHOWSKI asked Ms. Carpeneti to talk about intent
and the fiscal note. It would cost more for active GPS
monitoring but it would be preferable if the intent is to keep
someone away from a person they've abused.
MS. CARPENETI said DOL would have better information after DPS
looks at procedures and adopts guidelines. She offered her
understanding that the monitoring would have to be active if the
intent was to protect a victim 24/7.
2:27:05 PM
Section 11 requires a person arrested for a violation of a bail
condition connected to a domestic violence crime to appear
before a judge in person or by telephone before release from
custody. This is an expansion of the current law, which requires
a person charged with a domestic violence crime to appear in
person or by telephone in front of a judicial officer before he
or she can be released on bail.
SENATOR WIELECHOWSKI asked if the intent was to capture even
technical violations of parole or probation.
MS. CARPENETI opined that most of these violations would be a
lot more than a technical violation. The idea is that a judicial
officer should personally look at why the person violated a
condition of bail, whether there is more danger to the victim,
and whether other conditions might be appropriate under the
circumstances.
CHAIR COGHILL commented that he had difficulty transitioning
from Section 10 to Section 11; the monitoring issues were
similar but one was a civil matter and the other was a criminal
matter.
MS. CARPENETI explained that it was unwise to release a person
under a bail schedule when he or she had been arrested for
violating a condition of bail on a domestic violence crime.
Before a subsequent release, a judicial officer should look
personally at both the person and the violation.
Section 12 expands the crimes subject to a wiretap to include
sex trafficking in the first or second degree and human
trafficking in the first degree. The specific procedure the
attorney general must follow to obtain permission from a court
does not change. Perpetrators of these types of crime
communicate and cooperate and, under the correct circumstances,
interception of those communications might provide valuable
evidence.
2:30:12 PM
Section 13 expands the current rape shield protection for
victims of sexual assault, sexual abuse, and unlawful
exploitation of a minor by excluding evidence of a victim's
sexual conduct both before and after the person was victimized.
Section 13 also requires a defendant to make application for use
of such evidence at least five days before the trial unless the
defendant did not know about it. She noted that DOL had
discussed this with the public defender.
2:31:35 PM
SENATOR DYSON questioned how the law deals with false
accusations. He expressed concern that a child's pattern of
false accusations could not be used as evidence for the defense.
MS. CARPENETI said this only requires the judge to weigh the
relevance and probative value of the evidence outside the
presence of the jury. This gives some protection to the victim,
but would not prevent introduction of relevant evidence.
SENATOR WIELECHOWSKI expressed concern about the five-day
requirement and potential consequences to a defendant.
MS. CARPENETI acknowledged the concern and that there was room
to balance the needs of both sides.
Sections 14, 15, 43, and 44 strengthen the procedure for a judge
to determine whether a witness who claims a Fifth Amendment
protection against testifying is entitled to a grant of immunity
from prosecution for their testimony. Because Alaska has
transactional immunity, a witness who is granted immunity cannot
be prosecuted for whatever he or she says regardless of the
evidence from another source. Sections 14 and 15 require a court
to interview the witness in a closed hearing.
2:35:21 PM
SENATOR WIELECHOWSKI asked if this would require a person who
claimed a Fifth Amendment protection to testify in a judge's
chambers.
MS. CARPENETI explained that under current law there is an in
camera proceeding with only the witness who is claiming the
privilege, the witness's attorney, and the judge. No other
parties are part of the procedure.
SENATOR WIELECHOWSKI asked if she agreed that the attorney makes
the proffer as opposed to the witness having to violate his or
her Fifth Amendment right and testify.
MS. CARPENETI said that's the problem; if the witness claiming
the Fifth Amendment privilege doesn't participate in any way
other than to have his or her attorney make the proffer, the
judge isn't in a good position to evaluate the credibility of
that witness.
SENATOR WIELECHOWSKI asked if this had been upheld in any other
jurisdiction because it appeared to be a violation of both the
Fifth Amendment of the U.S. Constitution and Chapter 1 Section 9
of the Alaska Constitution.
MS. CARPENETI agreed that people should not be compelled to
incriminate themselves. However, when a person is asking for
immunity in a criminal prosecution of another person, it's
important for the judge to have some opportunity to evaluate the
credibility of the witness asking for immunity. She agreed to
look at what other jurisdictions do in this regard.
CHAIR COGHILL said that as the discussion goes forward he would
be looking at what the government can force the individual to
answer as opposed to what the individual cannot get the
government to answer.
MS. CARPENETI said that Sections 43 and 44 amend Rule 216(a) and
(b) to allow the state to take an interlocutory appeal of the
trial court's decision in that regard.
Section 16 requires a defendant who has participated in a
treatment program as a condition of bail release and is planning
to claim credit for that treatment to raise the issue 10 days
before the sentencing proceeding.
Section 17 requires a defendant who is claiming credit for time
spent in a treatment program as a condition of probation or a
condition of bail release in connection with a petition to
revoke probation to file notice of the request 10 days before
the disposition hearing on the petition. The notice must include
the number of requested days of credit and may not be made after
the disposition hearing.
2:40:41 PM
Section 18 provides that a judge may not impose a suspended
imposition of sentence for a person convicted of human
trafficking.
Section 19 provides that if a defendant is being sentenced for
two or more convictions of distribution of child pornography,
possession of child pornography, or distribution of indecent
material to minors, the judge must impose some consecutive time
for each crime or attempted or solicited crime for which the
defendant is being sentenced.
SENATOR WIELECHOWSKI posed a hypothetical example of a person
who is found to have 100 pictures of child pornography in their
possession. He asked if current law considers each picture a
violation and if the bill would stack the charges.
MS. CARPENETI replied it's possible that each possession could
be a separate charge. However, they're generally charged in
groups and people are not charged with 100 counts of possession
of child pornography.
CHAIR COGHILL asked if a person might be convicted on several
different counts.
MS. CARPENETI answered yes.
CHAIR COGHILL asked if Section 19 requires that some sentence
structure be given for each count.
MS. CARPENETI said yes; this just asks the judge to recognize
that there have been several convictions and at least one day
should be imposed consecutively for each conviction.
She noted that Sections 20 and 21 were previously discussed in
connection to the Collins case.
Section 22 adds sex trafficking in the first degree and online
enticement of a minor to the definition of sex felony in Title
12. This corrects the error made in 2006 when the legislature
increased the ranges for sex felonies.
2:43:09 PM
Section 23 requires a patron of a child who has been prostituted
to register as a sex offender.
Sections 24, 25, and 26 were discussed previously.
Section 27 makes a conforming amendment to the warning on
domestic violence protective orders to reflect that the maximum
fine for a misdemeanor was increased from $5,000 to $10,000.
Section 28 expands the privilege of confidential communications
between counselors of domestic violence cases and sexual assault
cases to include counselors that work on military bases.
SENATOR WIELECHOWSKI asked if the definition of "victim
counseling centers" would be tightened.
MS. CARPENETI answered yes; it doesn't have a definition and it
probably should.
Section 29 allows a victim of sex trafficking, human
trafficking, or unlawful exploitation of a minor to apply for
violent crimes compensation benefits.
Sections 30, 40, and 41 address the goal of making the system
more responsive to the rights of victims. If the presentence
report does not include a victim impact statement, it requires
the court to ask why one wasn't provided. They also expand the
places where a judge can consider the victim impact statement in
sentencing a person. Section 30 would ask the Alaska Judicial
Council to evaluate whether or not a judge has complied with the
law in terms of victims' rights when the judge comes up for
judicial retention election, and include that evaluation in the
report on the judge's performance.
2:46:01 PM
SENATOR DYSON asked Ms. Carpeneti to review whether the language
on page 2, lines 24-25 and page 3, lines 1-2 were redundant.
MS. CARPENETI agreed to look.
Section 31 provides that a person who has been convicted of an
unclassified sexual felony or class A sexual felony does not
qualify for mandatory or "good time" parole.
Sections 32, 33, 34, and 35 are the provisions that would allow
another lawyer in the Department of Law, in addition to the
attorney general, to evaluate applications from law enforcement
for administrative subpoenas.
SENATOR WIELECHOWSKI highlighted his serious, continuing concern
with that provision.
MS. CARPENETI said the rationale is that the attorney general is
sometimes unavailable and the issues need to be addressed
quickly. It would be very helpful to law enforcement if another
lawyer was trained to evaluate these petitions.
2:48:35 PM
Section 36 adds to those circumstances that allow a court to
decide that reasonable efforts by the Office of Children's
Services to reunite a child who is in an out-of-home placement
with his or her family are not required. It provides that the
court may make this determination if it finds by clear and
convincing evidence that the parent or guardian has committed
sexual abuse against the child or another child of the parent or
guardian, or that the parent or guardian is registered or
required to register as a sex offender.
Sections 37 and 38 add athletic coaches to those persons who are
required by law to report to authorities if there is reasonable
cause to believe that a child is being abused or neglected. It
defines athletic coach to include both paid and volunteer
coaches.
Section 39 adopts a court rule that limits the publication of
child pornography that is required during the discovery process
in a prosecution for unlawful exploitation of a minor. This
requires all parties to view the material at the source. It also
allows the court to adopt procedures to get the material to an
out-of-state expert witness.
CHAIR COGHILL summarized that this ensures that the pornography
isn't redistributed and it protects the right of counsel to get
the information.
MS. CARPENETI said the defendants have an obvious right to look
at the material, but copying the material should be limited
because every time it's copied it revictimizes the person in the
photograph.
Section 42 amends Rule 404(b)(2)(i), Alaska Rules of Evidence.
Under Rule 404, evidence of a defendant's prior bad acts is
generally not admissible in a criminal prosecution. There are
several exceptions to this rule. Evidence in the prosecution of
a physical or sexual assault or abuse of a minor that describes
other similar acts by the defendant toward the same victim or
other similar victims may be admissible. Current law, however,
limits the admissible evidence to acts committed within 10 years
preceding the date of the currently charged crime. Section 42
removes this time limitation. Other exceptions to the general
rule, for example, sexual assault and domestic violence
prosecutions, do not limit the use of prior acts to those
committed within 10 years of the current offense. Further, the
10-year limit is problematic because a person convicted of a
crime against a child may have been incarcerated for a
significant period for the previous offense. The question of
whether the prior act occurred too far in the past is left to
the judge to determine under the circumstances of the case.
2:52:31 PM
SENATOR WIELECHOWSKI asked if there was a 10-year look-back for
prior bad acts in any other offense.
MS. CARPENETI said prior bad acts generally cannot be used, but
the legislature has adopted the aforementioned exceptions.
SENATOR WIELECHOWSKI asked which cases cannot use prior bad
acts.
MS. CARPENETI cited cases of theft and drunk driving.
SENATOR WIELECHOWSKI asked if she thought that was a good
policy.
MS. CARPENETI responded that another exception is to convince
the court that there are other reasons to use prior bad acts.
She continued that there was good reason for the general rule
and, with some exceptions, a person should be convicted for what
they've done this time, not what they've done in the past.
CHAIR COGHILL commented that the double jeopardy question rises.
MS. CARPENETI said one of the rationales for the rule is that
the person has paid their debt to society. She continued that
the remaining sections had already been discussed in connection
with other sections.
2:55:15 PM
CHAIR COGHILL stated that during the next hearing he would take
public testimony and address the questions that were raised
today.
MS. CARPENETI thanked the committee.
CHAIR COGHILL remarked that accountability measures are part of
changing the culture in Alaska.
SENATOR WIELECHOWSKI asked if DOL planned to bring a committee
substitute (CS).
MS. CARPENETI said she would defer to the Chair.
CHAIR COGHILL said there would be no surprises.
[SB 22 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB0022A.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Sectional -- SB 22.doc |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Cover letter from Gov and fiscal notes.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Fiscal Notes from Court System.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |