Legislature(2013 - 2014)BELTZ 105 (TSBldg)

03/03/2014 01:30 PM Senate JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 128 ELECTRONIC BULLYING TELECONFERENCED
Heard & Held
*+ SB 176 REG. OF FIREARMS/KNIVES BY UNIVERSITY TELECONFERENCED
Heard & Held
+= SB 171 MULTIDISCIPLINARY CHILD PROTECTION TEAMS TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 108 LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS
Heard & Held
                   SB 128-ELECTRONIC BULLYING                                                                               
                                                                                                                                
1:48:56 PM                                                                                                                    
CHAIR COGHILL announced that the  next order of business would be                                                               
SB 128."An Act relating to the crime of harassment."                                                                           
                                                                                                                                
SENATOR MCGUIRE  moved to adopt  the CS  for SB 128,  labeled 28-                                                               
LS1001\Y, as the working document.                                                                                              
                                                                                                                                
CHAIR COGHILL objected.                                                                                                         
                                                                                                                                
1:50:12 PM                                                                                                                    
EDRA  MORLEDGE,   Staff,  Senator   Kevin  Meyer,   Alaska  State                                                               
Legislature, Juneau,  Alaska, presented  changes in Version  Y of                                                               
SB 128  on behalf of  the sponsor.  She described changes  to the                                                               
bill since the last hearing on  February 19 to ensure clarity and                                                               
to   prevent   overlapping   of   statutes.   There   are   three                                                               
circumstances that would cause electronic  harassment to become a                                                               
crime: it causes  severe mental or emotional injury,  it places a                                                               
person in  fear of significant  damage to the  person's property,                                                               
or it places a person in  reasonable fear of physical injury. She                                                               
said  the sponsor  has worked  with  the Department  of Law,  the                                                               
Public  Defender's  Office, and  Legal  Services  to develop  the                                                               
latest version of the bill.  The sponsor believes it accomplishes                                                               
some of the issues raised at the first meeting.                                                                                 
                                                                                                                                
CHAIR COGHILL summarized  the changes. He inquired  if there were                                                               
other changes.                                                                                                                  
                                                                                                                                
MS.  MORLEDGE noted  that  the  quantifying language  "reasonable                                                               
fear"  and "significant  damage" was  added because  the original                                                               
version was quite broad.                                                                                                        
                                                                                                                                
CHAIR  COGHILL  questioned  why  it  said  "fear  of  significant                                                               
damage."                                                                                                                        
                                                                                                                                
MS. MORLEDGE explained  that the Department of Law  brought it to                                                               
the  sponsor's  attention  that there  are  overlapping  property                                                               
crime statutes that carry different  penalties and this provision                                                               
contains a class B misdemeanor penalty.                                                                                         
                                                                                                                                
CHAIR COGHILL  asked if it  stays within the class  B misdemeanor                                                               
category.                                                                                                                       
                                                                                                                                
MS. MORLEDGE said yes.                                                                                                          
                                                                                                                                
1:53:41 PM                                                                                                                    
SENATOR DYSON  said he is  troubled by the  inherent subjectivity                                                               
of the damage to the victim.                                                                                                    
                                                                                                                                
CHAIR  COGHILL suggested  Legislative  Legal  could address  that                                                               
issue.                                                                                                                          
                                                                                                                                
SENATOR DYSON asked if age  and disabilities were considered when                                                               
drafting the bill.                                                                                                              
                                                                                                                                
SENATOR  MEYER  replied they  were  part  of the  discussion.  He                                                               
pointed out that  cyberbullying impacts children of  all ages and                                                               
capabilities.  The bill  focuses on  children under  18. Research                                                               
shows an increase in youth  suicide as a result of cyberbullying.                                                               
He thought  people with intellectual disabilities  had additional                                                               
protections.                                                                                                                    
                                                                                                                                
MS. MORELY  added that the sponsor  felt it was a  policy call as                                                               
to  which groups  to include.  The intention  of the  bill is  to                                                               
protect  school-age children  because of  the amount  of bullying                                                               
that  already  occurs.  This  would  add  cyberbullying  to  that                                                               
category.  She noted  the  sponsor is  amenable  to adding  other                                                               
groups.                                                                                                                         
                                                                                                                                
SENATOR  DYSON  agreed  the  issue  might  already  be  addressed                                                               
elsewhere.                                                                                                                      
                                                                                                                                
SENATOR MCGUIRE  questioned the  "mental intent"  on page  1. She                                                               
noted  that  the  guiding  statute  is  already  there  under  AS                                                               
11.61.120 and says  they commit the crime of  harassment with the                                                               
intent to  harass or annoy  another person.  She asked if  it was                                                               
"intentional and not reckless."                                                                                                 
                                                                                                                                
MS. MORELY said it is intentional.                                                                                              
                                                                                                                                
SENATOR MCGUIRE stated kids are often reckless.                                                                                 
                                                                                                                                
1:57:56 PM                                                                                                                    
SENATOR MCGUIRE inquired  about the standard on page  2, lines 4-                                                               
6, when  looking at the  person receiving the  communication. She                                                               
wondered  if  the standard  was  "a  reasonable person  similarly                                                               
situated."  She  questioned if  the  test  is  how someone  of  a                                                               
similar  age  would  feel  if   they  were  teased,  taunted,  or                                                               
insulted.                                                                                                                       
                                                                                                                                
MS. MORELY said that is the intent.                                                                                             
                                                                                                                                
SENATOR  MCGUIRE  asked for  a  legal  interpretation of  whether                                                               
mental  intent  is  "intentional,  not reckless,"  and  that  the                                                               
standard by which  the victim is judging is  a "reasonable person                                                               
similarly  situated."  She  also  questioned, on  line  10,  what                                                               
"significant damage" and "person's property" mean.                                                                              
                                                                                                                                
MS. MORELY  relayed that in  the first  version of the  bill, the                                                               
language read  "damage to the  person's property."  After working                                                               
with the  Department of  Law, Legal Services,  and the  Office of                                                               
the Public Defender, it was  agreed that placing "significant" in                                                               
the language would raise the bar high enough.                                                                                   
                                                                                                                                
SENATOR MCGUIRE thought it was  important to have a legal opinion                                                               
on the record.                                                                                                                  
                                                                                                                                
2:00:27 PM                                                                                                                    
SENATOR MEYER suggested the Department  of Law answer. He pointed                                                               
out that a  lot of the issues are addressed  in the anti-bullying                                                               
and harassment bills. This bill now includes cyberbullying.                                                                     
                                                                                                                                
SENATOR   MCGUIRE   agreed.   She  maintained   with   electronic                                                               
communication there is more room to accidentally hurt someone.                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  there  is  a difference  between                                                               
cyber,  written,  and spoken  bullying  and  requested a  comment                                                               
about the policy call.                                                                                                          
                                                                                                                                
SENATOR MEYER gave  examples of social media sites  that could be                                                               
broadcast  worldwide, creating  a  much  more detrimental  result                                                               
than spoken bullying.                                                                                                           
                                                                                                                                
CHAIR COGHILL noted  on page 1, the provocation  could be written                                                               
or verbal. He asked how physical contact comes into play.                                                                       
                                                                                                                                
2:03:40 PM                                                                                                                    
SENATOR  WIELECHOWSKI  thought  the bill  created  two  different                                                               
standards. He  posed an example  if someone would  insult another                                                               
person resulting in an immediate  violent response, then it would                                                               
be  covered under  AS  11.61.120(a)(1). But  if  the person  just                                                               
causes emotional  injury, it would not  be a crime. On  the other                                                               
hand, if the insult was via an email, it would be a crime.                                                                      
                                                                                                                                
He  asked  if  sending  an electronic  communication  applies  to                                                               
Facebook and  Twitter, or  if the  post or  message must  be sent                                                               
directly to the person.                                                                                                         
                                                                                                                                
MS. MORELY  related that Legislative  Legal Services  agreed that                                                               
the posting to Facebook or to  a blog is "sending" so the message                                                               
does not have to be sent directly to a person.                                                                                  
                                                                                                                                
2:05:26 PM                                                                                                                    
KATHLEEN  STRASBAUGH,   Attorney,  Legislative   Legal  Services,                                                               
Legislative Affairs Agency, Juneau,  Alaska, stated that "send to                                                               
a person" is  sufficient to cover posting on a  social media site                                                               
where others might see it.                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI asked  whether posting  something insulting                                                               
and intimidating  on one's own  Facebook page would  be violating                                                               
the law.                                                                                                                        
                                                                                                                                
MS. STRASBAUGH said it depends on  the public nature of the site.                                                               
She gave an example of a  small group of high school students who                                                               
know that all  a person's friends will see the  post; there would                                                               
be a problem.                                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI gave  an example  of someone  who sends  an                                                               
email to a friend  who forwards it on to someone  under 18 who is                                                               
insulted by the email.                                                                                                          
                                                                                                                                
MS. STRASBAUGH said it depends on the intention of the sender.                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  inquired if there are  any equal protection                                                               
issues   or   other    issues   regarding   treating   electronic                                                               
communications    differently   than    letters   or    in-person                                                               
communications.                                                                                                                 
                                                                                                                                
MS.  STRASBAUGH  opined that  the  communications  are all  of  a                                                               
certain  type,  insulting and  provocative  in  a manner  extreme                                                               
enough   to  be   criminalized.  The   consequence  would   be  a                                                               
misdemeanor with a  maximum penalty of 90 days and  a fine. There                                                               
are  a number  of different  offenses under  that statute  at the                                                               
same penalty level  that have similar components,  such as direct                                                               
contact and  anonymous obscene phone  calls. The  legislature can                                                               
make  a  policy  determination   that  those  communications  are                                                               
equivalent for the purposes of the statute.                                                                                     
                                                                                                                                
2:08:38 PM                                                                                                                    
SENATOR  WIELECHOWSKI recalled  that the  U.S. Supreme  Court has                                                               
allowed heinous  communications to be considered  free speech. He                                                               
inquired if  the Court might  find that the bill  oversteps First                                                               
Amendment rights.                                                                                                               
                                                                                                                                
MS. STRASBAUGH  said if intent  is to  harass or annoy,  it would                                                               
depend on who  the person is and what the  circumstances are. The                                                               
court seems to make its decision on a case-by-case basis.                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI gave  an example of an  email saying someone                                                               
was a terrible  football player and it  causing emotional injury.                                                               
He wondered how the court would look at that.                                                                                   
                                                                                                                                
MS. STRASBAUGH said she didn't know.                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  asked about significant damage  to property                                                               
and used a pencil as an example.                                                                                                
                                                                                                                                
MS. STRASBAUGH  noted duplication  in the Y  version. On  page 7,                                                               
"causes fear  of significant damage  to a person's  property" can                                                               
be stricken  because it is  contained elsewhere in the  bill. She                                                               
deferred to the sponsor to  explain the intention with respect to                                                               
property.                                                                                                                       
                                                                                                                                
CHAIR COGHILL suggested hearing from the Department of Law.                                                                     
                                                                                                                                
2:12:43 PM                                                                                                                    
ANNE CARPENETTI,  Assistant Attorney General,  Criminal Division,                                                               
Legislative Services Section, Department  of Law, Juneau, Alaska,                                                               
pointed out  that in the  Y version, under  18 years of  age only                                                               
pertains  to  conduct  that causes  severe  mental  or  emotional                                                               
injury,  not  significant  damage  to a  person's  property.  She                                                               
thanked the  sponsor for  including fear  of damage  to property.                                                               
She gave  a hypothetical example of  how electronic communication                                                               
might  cause   fear  of   damage  to   property.  She   said  the                                                               
department's concern is that it  overlaps with criminal mischief,                                                               
which defines damage  to property similar to  theft with monetary                                                               
levels. She suggested  treating fear of significant  damage in SB
128  the  same  way.  It  is   currently  listed  as  a  class  B                                                               
misdemeanor in SB 128.                                                                                                          
                                                                                                                                
SENATOR  MCGUIRE  said she  likes  the  bill.  She asked  if  the                                                               
language under Section 1 subsection  (a) is good enough to charge                                                               
someone as it stands now,  or if it needs clarification regarding                                                               
electronic  communication.   She  worried  the  bill   creates  a                                                               
separate standard. She implied that  the bill makes it harder for                                                               
the  person who  is receiving  the electronic  communication. She                                                               
objected to a list that might change.                                                                                           
                                                                                                                                
2:17:35 PM                                                                                                                    
MS. CARPENETTI  offered to help  clarify the intent of  the bill.                                                               
She  explained  that  the difference  in  subsection  (a)(1)  for                                                               
harassment  is that  it  is an  immediate  violent response.  The                                                               
proposal  of  electronic  communication   does  not  require  the                                                               
immediacy of a response.                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  reiterated his  questions about  sending an                                                               
electronic communication via Facebook,  the degree of significant                                                               
damage, and equal protection issues.                                                                                            
                                                                                                                                
MS.  CARPENETTI  suggested  saying  "send or  post"  rather  than                                                               
"send"  an electronic  communication. On  the second  matter, she                                                               
explained that the  meaning of significant damage  to property is                                                               
broken  down  by  value  under  the  criminal  mischief  statute.                                                               
Regarding  equal protection,  she said  she would  like to  think                                                               
about  it more,  but there  is reason  to justify  this provision                                                               
because electronic  communication gets sent  to a lot  of people.                                                               
The potential to have many people  see a post is higher than with                                                               
verbal encounters  or letters. She  opined that  equal protection                                                               
could be raised.                                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI asked if the intent is person specific.                                                                    
                                                                                                                                
2:21:07 PM                                                                                                                    
MS. CARPENETTI  said "culpable mental  state" means  intending to                                                               
harass and annoy the victim.                                                                                                    
                                                                                                                                
SENATOR DYSON said he could see  how property could be damaged by                                                               
electronic means for  an adult. He inquired  what protections are                                                               
already in the law for handicapped persons.                                                                                     
                                                                                                                                
CHAIR  COGHILL said  the sponsor  could research  that topic.  He                                                               
asked  Senator McGuire  to withdraw  her  motion to  adopt the  Y                                                               
version of  SB 128 because of  the mistakes and issues  with that                                                               
version.                                                                                                                        
                                                                                                                                
2:23:04 PM                                                                                                                    
SENATOR  MCGUIRE withdrew  her motion  to adopt  version Y  of SB
128.                                                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI recommended a  Vanderbilt Law Review article                                                               
on  the constitutionality  of  cyberbullying  laws. He  concluded                                                               
that, as currently  written, the bill has  severe First Amendment                                                               
issues.                                                                                                                         
                                                                                                                                
CHAIR  COGHILL  said  it's  an   excellent  suggestion  and  then                                                               
directed Senator Meyer to work further on the bill.                                                                             
                                                                                                                                
CHAIR COGHILL held SB 128 in committee.                                                                                         

Document Name Date/Time Subjects
Legislative Legal Opinion.pdf SJUD 3/3/2014 1:30:00 PM
SB 176
Sectional Analysis.pdf SJUD 3/3/2014 1:30:00 PM
SB 176
Written Testimony .zip SJUD 3/3/2014 1:30:00 PM
SB 176
Supporting Documents.zip SJUD 3/3/2014 1:30:00 PM
SB 176
Sponsor Statement.pdf SJUD 3/3/2014 1:30:00 PM
SB 176
SB 128 CS Version O Summary of Changes.pdf SJUD 3/3/2014 1:30:00 PM
SB 128