Legislature(2019 - 2020)BELTZ 105 (TSBldg)
02/15/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB41 | |
| SB35 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 12 | TELECONFERENCED | |
| += | SB 35 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 41 | TELECONFERENCED | |
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
1:50:19 PM
CHAIR HUGHES reconvened the meeting and announced that the final
order of business would be SENATE BILL NO. 35, "An Act
eliminating marriage as a defense to certain crimes of sexual
assault; relating to enticement of a minor; relating to
harassment in the first degree; relating to harassment in the
second degree; relating to indecent viewing or production of a
picture; relating to the definition of 'sexual contact';
relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
1:50:29 PM
JOHN SKIDMORE, Deputy Attorney General; Director, Criminal
Division, Department of Law began reviewing the sectional
analysis of SB 35. He turned to Section 1, which read as
follows:
Section 1: Legislative Intent and Findings Expresses
intent to overturn Williams v. State, 418 P.3d 870
(Alaska App. 2018) in regards to counting prior
felonies when sentencing a person for a sexual felony
and State, Department of Public Safety v. Doe, 425 P.
3d 115 (Alaska 2018) in regards to out-of-state sex
offenders registering as a sex offender when they are
present in Alaska.
He said that SB 35 would address sex crimes and sentencing
associated with those crimes and Section 1 covers two different
cases that the bill will address. The legislative intent is to
overturn Williams v. State, a 2018 case related to presumptive
sentencing for sex felonies. He briefly explained presumptive
sentencing, such that if a person commits a felony offense, the
sentencing is based on two factors. The first factor is the
level of the offense itself, and whether it is classified a
class A, B, or C felony and the second is the person's prior
criminal history for other felonies, he said. Felonies for non-
sex felonies must be in a certain timeframe; however, no time
period exists to exclude sex felonies and all sex related
felonies are counted.
MR. SKIDMORE said that sex felonies are considered slightly
differently than other felonies and to determine the right
felony range for sex felonies, an analysis is done to determine
whether the prior felony was a sex felony or if it was a non-sex
felony. The type of prior conviction will impact the sentencing
range available to the court for this particular offense. Under
Williams v. State, the court indicated the statutes were very
clear about prior sex felonies. However, the court interpreted
the statutes for prior non-sex felonies to mean that non-sex
felonies are only counted if the felony falls within a 10-year
range.
He stated that the original intent of the legislature was not to
have a time limitation. He recapped that Williams v. State said
that the old rule applies to non-sex felonies and SB 35 would
change it so that time would not be applied. He referred to the
legislative findings and intent, page 2, subsection (a), which
read, " and the legislature does not now intend by enacting
this Act, to impose any limitation on which previous convictions
may be considered when imposing a sentence under AS
12.55.125(i)."
1:54:10 PM
MR. SKIDMORE referred to intent language on page 2, subsection
(b), " to overturn the decision in Williams v. State, 418 P.3d
870 7 (Alaska App. 2018) to the extent that it held that, when
imposing a sentence under 8 AS 12.55.125(i), prior felony
convictions should not be considered if 10 or more years has
elapsed between the date of the defendant's unconditional
discharge on the immediately preceding offense and commission of
the present offense unless the prior conviction was for an
unclassified or class A felony."
MR. SKIDMORE referred to page 2, to subsection (c), which read,
"It is the intent of the legislature that all prior felony
convictions be considered when imposing a sentence under AS
12.55.125(i) regardless of the age of those convictions." He
said it makes it abundantly clear that it is the intent of the
legislature to consider that all prior felony convictions be
considered when imposing a sentence regardless of the age of the
conviction.
1:54:53 PM
MR. SKIDMORE explained that the second part of the intent
language relates to the sex offender registration laws.
Currently, an offender is not required to register as a sex
offender for an offense committed in another state unless the
offense is similar to a felony sex offense in Alaska law. He
said that offenders who come to Alaska are required to register
as sex offenders in their home jurisdiction but are not required
to register in Alaska for all sex crime. He cited [John Doe v.
State of Alaska], which related to two instances that were
interpreted as similar. However, the court did not find a
similarity, and the persons were not required to register as sex
offenders. The legislative intent [under subsection (d)(1)]
identifies the purpose as a means to protect the public, which
is the state's primary interest, by providing public information
in a more accessible way to the public, he said.
1:56:38 PM
MR. SKIDMORE related that the intent language [in subsection
(d)(2)] acknowledges the state's transient population means that
sex offenders required to register in the state where they were
convicted may relocate to Alaska for various reasons. He
identified the transient population includes seasonal workers in
the oil, fishing, or tourism industries, as well as other
industries. He offered his belief that the state must be
meticulous and broader in terms of its current laws. He said
that [paragraph] 3, indicates that the narrow interpretation in
[John Doe v. State of Alaska] hinders the state's ability to
protect the public from sex offenders who come to this state
since Alaska's registry does not require them to register.
Finally, the intent language on page 2, subsection (e) relates
to reciprocity, which states that a convicted offender who is
registered in another state must register in Alaska.
1:58:34 PM
SENATOR MICCICHE asked for clarification on the reason why
adopting reciprocity for sex registry is not sufficient and if
the department has considered this approach.
MR. SKIDMORE answered that he has not considered reciprocity
with all states, but he noted that the logistical problems of
requiring offenders from all states must appear on Alaska's
registry. Currently, Alaska wants to capture the information on
sex offenders from other states who temporarily reside in Alaska
in its sex offender registry. He reviewed the process, that the
other state would inform the person leaving its jurisdiction to
register in Alaska. He recalled that the Department of Public
Safety (DPS) previously indicated that it receives inquiries
from approximately 8-10 people a month if they would be required
to register in Alaska. He offered to comment more on reciprocity
if he could review proposed language.
2:00:53 PM
SENATOR MICCICHE offered his belief the state would need to
track the sex offenders who are on other states' registries for
compliance. He said that the more effective goal would be to
have a national registry, or a gap will occur.
MR. SKIDMORE agreed a national registry would simplify matters.
Currently, when an offender comes to Alaska from another state,
the sex offender is required to contact Alaska's registry.
However, the state does not actively monitor all other 49
states' registries to determine which offenders are coming to
Alaska. Instead, Alaska relies on other states to inform the DPS
that the offender is moving to Alaska. This will ensure that the
person takes the appropriate action, he said. If offenders fail
to register, Alaska can take the appropriate enforcement action,
he advised.
2:02:07 PM
SENATOR MICCICHE related his understanding that sex offender
registrants are required to do many things to meet compliance.
He offered his belief that the state would still have the same
proportion of non-compliance.
MR. SKIDMORE asked whether the question is that some people will
not follow through with the requirements and he agreed some will
not do so. The state attempts to track this through the notice
it receives from the other jurisdiction that someone is coming
to Alaska. He acknowledged that some people will slip in and
when they are discovered the state prosecutes them, he said.
2:03:14 PM
SENATOR REINBOLD echoed the same concern. She wondered if some
offenders simply get on a plane to Alaska and pose a threat to
Alaskans.
MR. SKIDMORE deferred to the Department of Public Safety (DPS)
to answer. He reiterated the reporting requirement. However, he
said he cannot guarantee everyone adheres to the requirement to
register as a sex offender in Alaska.
2:04:06 PM
SENATOR REINBOLD was unsure how this applies to foreigners
coming in from other countries.
MR. SKIDMORE said he was unsure if other countries have sex
offender registries.
SENATOR REINBOLD related that Germany is having difficulties.
She expressed concern that some people from other countries come
to Alaska to work in the commercial fishing industry.
2:05:18 PM
CHAIR HUGHES recalled a discussion that if SB 35 were to pass
that this provision would not be retroactive and asked for
further clarification.
MR. SKIDMORE explained the constitutional term, ex post facto,
which means that the state cannot create a law to apply to
activity that occurred prior to passage of the law and prosecute
for it. He said he would have to more carefully review how this
law would apply to people who moved to Alaska and still remain
in Alaska.
2:06:36 PM
CHAIR HUGHES asked whether he would research how SB 35 will
affect those individuals who moved to Alaska and remained in
Alaska and if they can be included.
MR. SKIDMORE said that ex post facto analysis is not easy to
perform, but he offered to try to do so. In response to Senator
Reinbold, he said the difference between the two concepts is
that one could say that the state wants someone to register, but
the question is what enforcement mechanism will be used if the
person does not do so. The registration itself is to provide for
public safety and is not related to punishment. If someone were
to fail to register, the person would be committing a crime and
would be subject to prosecution. He clarified that the
distinction is the difference between stating an obligation and
identifying the consequences if the person does not meet the
obligation. He reiterated that the consequences cannot be
applied retroactively.
SENATOR REINBOLD suggested the Constitution of the State of
Alaska states that public safety is the most important thing.
She expressed concern about public safety and the importance to
enforce the sex offender registry.
CHAIR HUGHES acknowledged that Mr. Skidmore will review it and
try to find a solution.
2:09:05 PM
SENATOR MICCICHE echoed that Mr. Skidmore understands the
concern. He offered his belief that the long-term objective
should be to institute a national sex offender registry.
2:09:58 PM
CHAIR HUGHES asked whether Mr. Skidmore would review Section 20
of the SB 35.
2:10:40 PM
MR. SKIDMORE referred to pages 13-15 of SB 35 and to Section 20
of the sectional analysis, which read as follows:
Section 20: Adds indecent viewing or production of a
picture of a person under the age of 16 or indecent
production of a picture of an adult to the list of
registerable sex offenses. Also adds requirement to
register as a sex offender in Alaska if required to
register under the laws of another state.
He explained that Section 20 defines a sex offense under AS
12.63.100(6)(C)(xv). He referred to page 14, line 30 through
page 15 line 1, which would add language in [sub-subparagraph
(xv), as follows, "(xv) AS 11.61.123 if the offender is subject
to punishment under AS 11.61.123(f)(1);" and to page 15, lines
11-12, which read: "(E) an offense in which the person is
required to register as a sex offender under the laws of another
jurisdiction;". He added that this is the provision that would
require someone to register in Alaska if the offender is
registered in another jurisdiction.
2:11:41 PM
CHAIR HUGHES said that in 2007, the Congress passed the Adam
Walsh Child Protection and Safety Act, which required all U.S.
jurisdictions to update their sex offender registry laws to
conform to it. She recalled that the law required tiers,
including a high-risk tier in which the offender would need to
register for life and must report quarterly, whereas a tier 1
offender, the lowest level offender, would only be required to
register for 15 years and report once a year. She asked how a
tiered system would work in Alaska. She expressed concern that
someone in another jurisdiction, who is required to be
registered for life, could slip in and only be required to
register for 15 years in Alaska.
MR. SKIDMORE reported that Alaska does have a tiered system of
registry, including lifetime registry requirements. He
acknowledged that the administration has been discussing how to
differentiate between lifetime registry and 15-year registry
requirements. He anticipated that this distinction would likely
be established by regulation.
CHAIR HUGHES asked Mr. Skidmore to report back to the committee
with any future updates on this issue since the committee wants
the highest level of public protection. She further asked if a
system is in place for states to communicate when sex offenders
relocate to Alaska.
MR. SKIDMORE deferred to Ms. Monfreda.
2:15:04 PM
KATHRYN MONFREDA, Chief, Criminal Records & Identification
Bureau, Department of Public Safety (DPS), stated that manages
the Sex Offender Registry in Alaska. Most states have a law that
requires them to notify another state when an offender is
relocating to that state. She said two mechanisms to communicate
exist, either via message to the National Crime Information
Center (NCIC), or via communication established by the federal
Sex Offender Registration and Notification Act (SORNA). She
explained that information and photographs can also be added.
2:15:57 PM
CHAIR HUGHES asked for further clarification on the follow-up
the DPS uses.
MS. MONFREDA said if the SORNA portal is used it provides the
date the person is expected to arrive. The state tracks the
information and releases names of anyone who fails to comply to
the Alaska State Troopers and U.S. Marshals to locate and
enforce.
2:16:34 PM
CHAIR HUGHES asked whether Alaska has a law requiring sex
offenders leaving Alaska to report prior to their departure.
MS. MONFREDA said that AS 12.63 requires an offender to notify
the state when they move to another location in Alaska or if
they move out of state.
2:16:59 PM
SENATOR REINBOLD asked whether offenders who are on vacation or
who work temporary jobs in Alaska must register on the sex
offender registry.
MS. MONFREDA said the law is silent for tourists. The department
has a form to allow offenders to inform the state when and where
they will be traveling. However, if the offender is traveling
via a cruise ship, which is often in and out of ports on the
same day, the ship has often sailed prior to notification being
received.
SENATOR REINBOLD offered her belief that this might be a
significant loophole.
MS. MONFREDA responded that people working in Alaska, including
fishermen or North Slope workers are required to register in
Alaska. In further response to Senator Reinbold, she said that
the law requires sex offenders must register if they are going
to live, work, or go to school in Alaska, but it is silent on
travel.
SENATOR REINBOLD said Alaska has several million visitors
traveling to Alaska. She asked whether the department has any
recommendations and if the law applies to international
travelers.
MS. MONFREDA answered that the statute would need to be changed
to specifically give instructions to sex offenders who are
tourists. In terms of international sex offenders, the
department has made some inquiries on out of country registries;
however, Alaska has had difficulty in obtaining documentation to
evaluate an offender's requirement to register.
2:20:17 PM
CHAIR HUGHES asked whether other states have requirements for
visitors who are sex offenders to register in their states.
MS. MONFREDA answered yes, that some do, but each state's
requirement is slightly different. She pointed out that a
national law exists, and Alaska has been working towards
compliance, which includes tiering. She said that some states
comply partially, including Alaska.
2:21:12 PM
SENATOR REINBOLD asked her to provide any model legislation
related to visitors who are sex offenders because Alaska has
between 1-2 million visitors each year who vacation in the
state. She emphasized that Alaska ranks number 1 for sexual
abuse in the nation. She asked whether Ms. Monfreda could
identify how many sex offenders were nonresidents.
MS. MONFREDA answered that she did not have an exact count, but
her staff indicates that the state has approximately 15 new
registrants each per month and 5 of the 15 were sex offenders
who offended in states outside of Alaska.
2:22:14 PM
SENATOR MICCICHE asked if a person who is on Iowa's sex offender
registry but subsequently moves to Alaska, whether the offender
must continue to report to Iowa.
MS. MONFREDA said it is dependent on the state. In Alaska once
an offender leaves Alaska, the offender is removed from Alaska's
sex offender registry.
SENATOR MICCICHE remarked that if a person chose carefully, the
person could fall off registries, unless continuous reporting
occurs.
MS. MONFREDA answered yes, that it would be possible for some
people to do so by moving from state to state.
CHAIR HUGHES asked whether it is possible to retain the
information on a sex offender who leaves Alaska and place the
offender in dormant status on the list.
MS. MONFREDA answered that Alaska does not destroy the sex
offender's record and it would retain the information.
2:24:38 PM
SENATOR MICCICHE asked the administration to comment on a
possible amendment that would require a person to stay on the
registry after the person leaves the state in order for the
state to lead the way on reporting.
2:25:11 PM
MR. SKIDMORE welcomed specific language and offered to consult
with the other departments before he could give a definitive
position on it. He said he understood the concern and
conceptually that it makes sense.
SENATOR REINBOLD said that she supports the concept. She said
one reason she thinks that keeping sex offenders on a registry
is very important is because people visit Alaska, leave for a
while, and then return to Alaska. She remarked that if Governor
Dunleavy wants to make Alaska safe, that that state must take
the lead and do things differently.
CHAIR HUGHES said that these matters are important. She said
that Alaskans are eager to have these things resolved, but the
committee needs to take the time to get it right.
2:26:51 PM
MR. SKIDMORE turned to Section 2-3 of the sectional analysis,
which read as follows:
Sections 2-3: Eliminates marriage as a defense to
sexual assault in all cases except when both parties
consent and it is the nature of the relationship that
is criminalized (i.e. probation officer/probationer,
peace officer/person in custody, Division of Juvenile
Justice Officer/person 18 or 19 and under the
jurisdiction of the Division of Juvenile Justice).
2:28:20 PM
MR. SKIDMORE stated that Section 2 references a provision of the
sexual assault statutes in [AS 11.41.410- 11.41.427], that it is
not a defense if the victim was the legal spouse of the
defendant. Section 3 would establish that it will still remain a
defense if both parties consent [under AS 41.425 (a)(2)-(5)].
For example, if one person is a probation officer and the other
person is on probation, under current law the parties could not
engage in sexual activity. However, it is a legal defense if the
parties are married, so it would be acceptable.
2:29:19 PM
CHAIR HUGHES related her understanding that under current law
marriage can be used as a defense. She asked for further
clarification on how this would apply to a correctional officer
who supervises a person, but the parties later marry. She wanted
to clarify the misconception that marriage is a defense if a
sexual assault occurs.
MR. SKIDMORE answered that marriage is not a defense if the
victim does not consent and a sexual assault occurs. He related
a scenario in which two adults are married, with one person
serving as a probation officer and the other is a probationer.
If the probation officer were charged with sexual assault and
the probationer did not consent and was sexually assaulted, the
probation officer could be charged under another provision in
law that indicates sexual penetration or sexual contact without
consent is a criminal offense. Marriage would not be a defense
under those criminal provisions, he said.
2:31:03 PM
MR. SKIDMORE referred to page 3 to Sections 4-6 of the sectional
analysis, which read as follows:
Sections 4-6: Removes the word "online" from the crime
of "online enticement" criminalizing any enticement of
a minor regardless of whether the enticement occurs
"online."
MR. SKIDMORE said these provisions relate to online enticement
enacted to address crimes in which an individual was trying to
entice a young person to engage in sexual activity. This statute
was designed to ensure that conduct was criminalized. However,
these provisions seem to be restricted only to online enticement
and this broadens it to all other circumstances, he said.
2:32:17 PM
MR. SKIDMORE referred to Section 7 of the sectional analysis,
which read as follows:
Section 7: Removes the word "semen" from the crime of
harassment in the first degree to conform with change
made in Section 13.
MR. SKIDMORE said that this provision references back to the
Justin Schneider case that the committee previously held
extensive discussions on during its hearings on SB 12.
MR. SKIDMORE turned to Section 8 of the sectional analysis,
which read as follows:
Section 8: Adds repeatedly sending unwanted images of
genitalia to the crime of harassment in the second
degree.
MR. SKIDMORE said Section 8 is found on page 4 of SB 35. Some
individuals think courtship involves sending inappropriate
images, he said. He said that the first time someone sends these
images is not criminalized. However, if the person receiving the
images indicates he/she is not interested in receiving them, but
the person continues to send the images, it would be considered
harassment and enforcement action could be taken.
2:33:37 PM
CHAIR HUGHES asked whether the victim must specifically indicate
not to send the images before this law could be applied.
MR. SKIDMORE read a portion of proposed Sec.8. AS 11.61.120,
which read as follows:
(a) A person commits the crime of harassment in the
second degree if, with intent to harass or annoy
another person,
(8) under circumstances not proscribed in AS 11.41.455
or 11.61.125, repeatedly sends electronic or printed
photographs, pictures, or films to another person that
show the genitals of any person.
MR. SKIDMORE explained that that the prosecutor must prove
sending the images is done with the intent to harass or annoy
and proving intent would be difficult. However, if the person
requested the person to not to send any other images, it would
allow prosecutors to indicate the offender was told not to send
more images, but the person continued to do so. He acknowledged
that he could not guarantee the person would be prosecuted, but
it would get the prosecutor closer to proving an intent to annoy
or harass the victim.
2:34:43 PM
SENATOR REINBOLD related her understanding that about 25 percent
of kids send inappropriate pictures to one another. She
described some activity that occurs when photos have been shared
while dating, but when the relationship ends one of the parties
forwards the images to other friends. She asked for further
clarification on how that activity would be addressed. She noted
that this is a significant problem in high schools and some
middle schools in her district.
MR. SKIDMORE explained that this language reads, "with intent to
harass or annoy another person," and he reread paragraph (8). He
said that this language is designed to deal with the
circumstance in which one person is receiving images and the
person sending them intends to harass or annoy a person. He said
he is very familiar with the concept she is describing, but he
was unsure whether this provision would address this issue.
CHAIR HUGHES asked whether a provision in law exists that would
address the conduct described.
MR. SKIDMORE answered that it depends on individual
circumstances of the case. He indicated he could not
specifically provide an answer today.
2:36:32 PM
SENATOR REINBOLD suggested potential language changes to add
"embarrass" and indicated the crime should apply the first time
the activity occurs, and it should not require that a person
indicate not to send the images. She offered her belief that
this language needs to be stricter to curb this activity.
2:37:12 PM
SENATOR MICCICHE asked whether Section 8, 11.61.120 (a)(6) would
specifically address that issue. The language read as follows:
(6) except as provided in AS 11.61.116, publishes or
distributes electronic or printed photographs,
pictures, or films that show the genitals, anus, or
female breast of the other person or show that person
engaged in a sexual act; [OR]
MR. SKIDMORE agreed that [paragraph] (6) would apply,
however, it also depends on the specific facts of the case.
In some instances, the images would fall under the crime of
child pornography, but the prosecutor would need to
evaluate the images. He reiterated that it would depend on
the specific facts of the case. He offered to review
applicable statutes to determine if the conduct is
addressed. He reiterated that [paragraph] (6) seems to
address a number of situations previously described.
2:38:50 PM
SENATOR REINBOLD related a scenario in which teens between the
ages 13-17 were in a relationship, take photos, and forward them
[to each other], but the photos are subsequently forwarded to
other people. She asked whether the law would address that
conduct.
2:39:18 PM
SENATOR MICCICHE referred to AS 11.61.116(a), which would
specifically apply to that conduct.
MR. SKIDMORE directed attention to AS 11.61.116(a), "Sending an
explicit image of a minor, which read:
(a) A person commits the offense of sending an
explicit image of a minor if the person, with intent
to annoy or humiliate another person, distributes an
electronic photograph or video that depicts the
genitals, anus, or female breast of that other person
taken when that person was a minor under 16 years of
age.
MR. SKIDMORE said the statute goes on to describe some other
definitions and the level of the offense. He agreed that this
statute does appear to address the conduct.
2:40:36 PM
SENATOR REINBOLD asked for further clarification whether this
statute referred to an adult sending the explicit image or if it
applied to a minor who is sending images to another minor. She
further asked what role school administrators have to address
this conduct. She reiterated that this is a common practice from
middle school to high school students. She asked whether
administrators or other friends who become aware of this conduct
would have a responsibility to report it.
MR. SKIDMORE answered that this does not differentiate between
an image being sent to an adult or a minor. The crime becomes a
crime when an image "of a minor" is sent. He said he was unsure
of any obligation to report.
2:41:34 PM
SENATOR REINBOLD asked what crime the person can be charged for
this conduct and whether it would be a misdemeanor.
MR. SKIDMORE answered that the penalty is a class B or class A
misdemeanor.
2:42:01 PM
SENATOR MICCICHE referred to existing statutory language
that covers sending an explicit image of a minor:
(1) a class B misdemeanor if the person
distributes the image to another person;
(2) a class A misdemeanor if the person
distributes the image to an Internet website that is
accessible to the public.
MR. SKIDMORE answered that is correct.
SENATOR REINBOLD asked whether schools have a duty to report.
2:42:40 PM
SENATOR MICCICHE recalled that he was engaged in the enabling
legislation in 2011 when this type of activity was becoming
prevalent. He offered his belief that a class A misdemeanor is
not nearly strict enough for information distributed on an
Internet website. He said he thinks this type of activity is
reportable since nearly anything related to materials
distributed in schools is reportable. However, he suggested it
may need further research.
CHAIR HUGHES offered to consult with the Department of Education
and Early Development (DEED).
2:43:31 PM
SENATOR MICCICHE stated that the statute would apply to someone
who is age 16 and under, which would be classified as a class A
or class B misdemeanor, depending on how the images are
distributed.
He said that under [paragraph (7), harassment in the first
degree would apply to someone who," sends or publishes an
electronic communication that insults, taunts, challenges, or
intimidates a person under 18 " He stated that paragraph (6)
in Section 8 would appear to cover anyone. He asked which
penalty is more serious for harassment and if class A or B
misdemeanors were adequate classifications.
MR. SKIDMORE said that harassment in the second degree is
classified as a class B misdemeanor. He related that in [AS
11.61.116] would be either a class A or class B misdemeanor.
2:44:30 PM
MR. SKIDMORE said that Sections 9-12 all relate to the same
crime. First, these provisions revise the statutes for clarity.
Second, these sections review the penalties for conduct that is
defined as a sex crime but is not treated as such in current
statute, and it identifies the necessary conforming changes.
MR. SKIDMORE turned to the chart in members' packets, titled
"Indecent Viewing or Production." He said that "viewing" is
different than "production." The conduct in these provisions
relate to viewing or producing a photo of the private exposure
of genitals, anus, or a female breast. It is the "viewing" or
"production" of that private exposure that is under
consideration. He said that the crime is broken out further
depending on whether the victim is a child or an adult.
MR. SKIDMORE paraphrased Sections 9-12 of the sectional
analysis, which read:
Section 9: Separates production from viewing in the
crime of indecent viewing or production of a picture.
Section 10: Conforming amendment. Changes the word
"photography" to "production of pictures."
Section 11: Conforming amendment. Changes the word
"photography" to "production of pictures."
Section 12: Classification section. Makes viewing or
production of a picture of a person under the age of
16 a class C felony (which will be sentenced as a
sexual felony, see sec. 15). Production of a picture
of an adult is also a class C felony. Viewing of a
picture of an adult is a class A misdemeanor.
2:46:49 PM
MR. SKIDMORE related that Section 12 gets to the heart of what
the bill intends to accomplish, which is increased sentencing.
Under current law when the victim is a child, the crime is
punishable as a class C felony offense, but not as a sex
offense. If victim is an adult the crime is punishable as a
class A misdemeanor, but not as a sex offense.
He explained that the proposed language in Section 12 [AS
11.61.123(f) would increase penalties for "viewing" a child for
this crime to a class C sex felony. Crimes against children are
subject to greater sentencing and additional requirements for
sex offender registration and treatment.
He said that "production" of a picture would also be a class C
sexual felony when the victim is a child, and again be subject
to the same type of increased penalties.
MR. SKIDMORE said that shifting to an adult, the "viewing" of
explicit pictures remains a class A misdemeanor, but
"production" of the explicit picture of an adult would be
elevated to a class C felony. This crime is not categorized as a
sexual felony with a much higher classification range since the
concept is to try to provide greater punishment for the
protection of children and still have significant punishment. It
would also require offenders to register as sex offenders, even
if the "production" of a picture is of an adult. However,
greater sentencing would not be associated with it, he said. He
related that this provision relates to the taking of the
picture. He noted that what happens to the picture and other
penalties that apply has been previously discussed.
2:48:53 PM
CHAIR HUGHES offered her belief that if someone produces an
explicit image or video of a child in a sexual way, that it
seems more serious that indecent viewing of a child. She
suggested that forcing a child to do different types of things
seems like a more serious offense.
MR. SKIDMORE said that "production" cases are situations in
which a person has installed a small camera in a bathroom or a
locker room capturing someone using the facilities, including
using the toilet, taking a shower, or changing clothes. These
provisions would not capture someone engaged in sexual activity.
The sexual activity would fall under child pornography, which
carries a much higher penalty than this conduct. He recapped
that it provides a more tiered approach beginning with exposure,
but not engaging in sexual activity.
2:50:23 PM
CHAIR HUGHES asked for further clarification on "production."
She offered her belief that the person capturing these explicit
images on film would be indecent viewing, but the person could
capture it on film. If so, the intent would be to use it at a
later date. She suggested that it seems as though the
"production" should be considered at a higher level.
MR. SKIDMORE said that she is correct. He related a crime that
occurred a number of years ago, in which a man installed a small
camera in a smoke detector in the changing room at a local
swimming pool. That was connected to a closed-circuit
television, which could have been watched live, but was also
recorded. The materials were discovered prior to the recordings
being viewed and the person was prosecuted and convicted. In
that context it captured private exposure.
He agreed that penalties were the same for "viewing" and
"production." However, the courts would also have a range of
penalties available between 2-12 years. The court would have
discretion to consider the facts and circumstances of the case.
He said both instances consist of a violation of privacy for an
individual. He acknowledged that the committee many wish to
elevate one of the crimes, which is within its prerogative. He
related that "viewing" and "production" of explicit images are
currently dealt with on exactly the same level for a child and
for an adult. This bill would substantially increase the
penalties for a child victim and increase the penalties for
"production" involving an adult victim. It would also require
offenders to register, he said. The department would be willing
to discuss any amendments the committee would like to consider.
2:53:35 PM
SENATOR MICCICHE asked for further clarification on the penalty
provision on the chart that states "viewing" explicit pictures
would be a class A misdemeanor with 0-30 days and a one year
maximum. It further lists the penalty for "production" of
explicit images of a child as a class C sexual felony, with a
presumptive penalty range between 2-12 years and with
aggravators could reach a maximum of 99 years. In addition, the
offender must register as a sex offender, he said.
MR. SKIDMORE answered yes, that the penalty was increased to a
class C sex felony with a maximum of 99 years, and the
presumptive range for a first offense is 2-12 years. Further,
with prior offenses the presumptive range would be higher, he
said. He acknowledged that aggravators would give the court
greater discretion.
SENATOR MICCICHE offered his support for the dramatic increase
in penalties for "production" of explicit images. He turned to
the knowledge and consent provision, on page 5, line 9, of SB
35, which read:
(A) the parent or guardian of the person shown in the
picture, if the person shown is under 16 years of age;
(B) the person shown in the picture, if the person
shown is at least 13 years of age.
He related his understanding that a parent or guardian could
give permission for someone to be shown in the explicit picture.
Further, the parent and the child must also give permission for
explicit pictures under 13 years of age. He asked for
clarification why someone would give permission for a child
under the age of 16 to be photographed in such a way. He said
that it seems absurd.
MR. SKIDMORE provided an example, such that a parent giving a
newborn baby a bath who recorded the activity with a picture or
a video. The potential exists that the photograph or video,
which is intended to be viewed within the family and is not
criminal in nature would be captured by the language.
2:56:09 PM
MR. SKIDMORE acknowledged his point, which is what other
circumstances would arise that explicit photographs would be
appropriate. He conceded that the statute for a child under the
age of 16 would assume that the parents are exercising
appropriate discretion about what is best for their child,
although he agreed that sometimes that may not be the case, but
until and unless the court terminated someone's parental rights,
the state will trust the parents to make the best decisions for
their children.
2:56:58 PM
SENATOR REINBOLD expressed concern about "viewing" and
"production." She asked how this language would address students
receiving texts that they do not want, but who are afraid to
stand up for themselves. She said she would cover a few
scenarios. For example, what happens if people obtain popups on
their computers, or e-mails with images they are not interested
in receiving. She asked for further clarification if the law
acknowledges these types of problems. She said she was shocked
that the state has only prosecuted one case of indecent viewing.
MR. SKIDMORE recalled one case that was taken to the court of
appeals, who issued an opinion and published it. He recalled
that three or four other cases were considered as MOJ's
(memorandum of judgment], which are unpublished cases that are
from the court of appeals. He added that many cases never make
it to the court of appeals. His comment was related to the cases
that make it to the court of appeals, and not the number of
prosecutions, he said.
2:58:56 PM
SENATOR REINBOLD directed attention to the slide to "production"
of explicit images as a class C sexual felony. She asked whether
this activity would include taking pictures and forwarding them
to friends. She asked if the person who received the unwanted
text [photo] could be charged and need to be registered as a sex
offender.
MR. SKIDMORE answered no. He said that indecent "viewing" or
"production" relates to the "production" of the explicit
photograph, and not what happens to the photograph since other
statutes relate to that aspect and activity. In terms of the
person receiving the explicit photograph and what type of
penalties would result, this goes back to the concept of "mens
rea" and "actus reus" that must apply to any crime. That would
mean that the person would need to have the mental knowledge of
wrongdoing and proof of the physical act of the crime itself.
The person who receives the explicit photo must have the mental
state of intent of viewing the picture as a criminal act. He
said that both concepts must coexist. However, a person who
opens an e-mail or text and does not want to see the material
has not committed a crime.
3:01:01 PM
SENATOR REINBOLD said that it seemed subjective. She wondered
how this might apply if a teenager gets a photo, thinks it is
funny, and forwards it to another person. She said that she
thinks that is a common practice.
MR. SKIDMORE reiterated that the taking of the photo or viewing
it are very different crimes. He said what is being amended in
SB 35 does not apply.
3:01:46 PM
SENATOR REINBOLD asked whether that activity should be
addressed. She reiterated that this activity is common practice
in schools, and it is not appropriate. She said it has caused
significant trauma. She said that people do not know how to
address it. At the very least, she said she thinks that
mandatory reporting requirements should be instituted if the
state wants to address these types of issues.
3:02:53 PM
CHAIR HUGHES remarked that pornography is prevalent. She said
the average age for seeing images is in the second and third
grade since many children have cell phones. She asked whether
there is a correlation in the increased availability of
pornography and an increase in sexual crimes in Alaska. She
could not recall the year that smart phones came out.
MR. SKIDMORE said he was unsure. He stated that sex crime
statistics have been increasing. However, he was unsure if any
causation or correlation with smart phones occurs. He
acknowledged that it is a concern and steps should be taken, but
he was not prepared to engage in that discussion. Some other
laws address this issue. He offered to review them to better be
able to hold a discussion.
CHAIR HUGHES asked if sex crimes involving minors and by minors
has increased since smart phones have become mainstream.
3:06:08 PM
SENATOR MICCICHE suggested that a chart showing statutes related
to sexual crimes would show that a number of issues have been
addressed in different sections of law. He offered his belief
that some gaps exist and those could be discussed outside of the
committee. He said that Mr. Skidmore is an amazing resource. He
asked whether Mr. Skidmore could develop a cross-reference
chart, which would be very helpful.
[SB 35 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB35 - Version A.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 Transmittal Letter.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 Highlights.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 35 - Sex Offenses Sectional.pdf |
SFIN 5/4/2019 9:00:00 AM SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-IDO-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DOC-PopMgmt-ParoleBd-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-DPS-CJISP-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-HSS-PS-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB35-Law-CrimDiv-FN.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 35 |
| SB 12 - Version M.PDF |
SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB 12 Sponsor Statement.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB 12 Sectional Summary Version M.pdf |
SJUD 2/15/2019 1:30:00 PM |
|
| SB12 Supporting Documents KTUU Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents KTVA Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |
| SB12 Supporting Documents Washington Post Article.pdf |
SJUD 2/13/2019 1:30:00 PM SJUD 2/15/2019 1:30:00 PM |
SB 12 |