Legislature(2019 - 2020)BELTZ 105 (TSBldg)
02/18/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB12|| 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 12-ASSAULT; SEX OFFENSES; SENTENCING CREDIT
SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE
1:33:13 PM
CHAIR HUGHES announced that the order of business would be
invited and public testimony for SB 12, SPONSOR SUBSTITUTE FOR
SENATE BILL NO. 12, "An Act relating to crime and criminal
procedure; relating to assault and sexual assault; relating to
harassment; relating to credit toward a sentence of imprisonment
for time spent in a treatment program or under electronic
monitoring; and providing for an effective date," and
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."
CARMEN LOWRY, Ph.D., Executive Director, Alaska Network on
Domestic Violence and Sexual Assault (ANDVSA), stated her
presentation specifically would deal with strangulation because
of its prominence with informing these bills. ANDVSA was
established in 1977 when five programs merged to become more
effective. Today it has 24 members from across the state and is
driven by its mission to be a collective movement to end
violence and oppression through social change.
DR. LOWRY said she was originally from western Kentucky. She
started as a children's advocate in 1990 at a Seattle shelter
and then worked in Bethel in the Tundra Women's Coalition from
1992-97. She continued working on issues of gender-based
violence and domestic and sexual violence in humanitarian
settings that included Darfur, Burma, Lebanon, Iraq, and East
Timor. She earned a doctorate in communications in 2013. She
moved back to Alaska in 2016. Her goal is to be a technical
resource for the committee and to work with the network and
member programs so they can also provide technical assistance to
the committee.
DR. LOWRY thanked the committee for their legislative responses
to the [Justin] Schneider case and to the impact of
strangulation, which has been very much a part of Ashley
Johnson-Barr's case. With respect to SB 12, the network is
pleased that the three major impacts to Alaska's sexual assault
laws that Senator Micciche explained in his sponsor statement
are all impacts they agree with: one, requiring that
strangulation to the point of unconsciousness is defined as
assault in the first degree; two, to eliminate credit toward
time served for electronic monitoring or private residence for
sexual assault convictions; and three, classifying unwanted
contact with semen as a sexual crime.
1:38:12 PM
DR. LOWRY said SB 35 has close parallels and addresses similar
concerns. These will have a demonstrable impact on sexual
assault laws. SB 35 amends the definition of sexual contact to
include contact with semen and makes unwanted contact with semen
a sexual offense, requires registration as a sex offender,
enhances strangulation sentencing, revises the out-of-state sex
offender process to require people who have been registered in
other states to register in Alaska, and addresses the marriage
defense of sexual assault.
DR. LOWRY said she wanted to share information because
strangulation is so prominent in both bills and is such a deadly
tactic. She shared some excerpts from an opinion piece that she
and Dr. Tracey Wiese had written:
Strangulation results in cerebral hypoxia this means that
there is not enough oxygen delivered to the brain to
maintain the functioning of the brain and results in a loss
of consciousness. A victim who is being strangled may lose
consciousness in as little as 10 seconds seconds that are
often filled with confusion, disorientation and disbelief
and often a feeling of, "I will die."
If victims consistently experience bouts of non-fatal
strangulation where critical areas of the brain do not get
enough oxygen or neurological input, they may experience
diminished brain functioning resulting in memory loss and
minor strokes.
Dr. Nancy Glass reported in 2008 that non-fatal
strangulation is an important risk factor for homicide in
domestic violence victims. This means that when victims
report that their partners have "choked" them even if
there are no marks those victims are at higher risk of
being murdered by their partner.
1:40:58 PM
DR. LOWRY said strangulation often leaves no marks. Partners
don't have to squeeze, but just have to apply pressure. That is
why training and awareness are so important. They need to
remember that victims are not choked, they are strangled. That
is why terminology is so important.
DR. LOWRY said that data from the 2017 Alaska Felony Level Sex
Offense Crime report shows that the felony level sexual offenses
for perpetrator and victim are being experienced by younger
people and victims and suspects are disproportionately Alaska
Native. The most common age for victims ranged from 12 to 19
years old. Out of the nearly 1,500 victims reporting in 2017, 45
percent were Alaska Native females. The most common age for
suspects was from 17 to 28 years old. Out of the 1,442 suspects,
36 percent were Alaska Native, and 95 percent of all suspects
were male. In 97 percent of the 1,500 incidents of felony level
sexual offense, the victim and suspect knew each other. She
called that chilling. About 76 percent of the incident locations
were reported as a residence or home.
DR. LOWRY concluded by stating there is lots of information and
data. They are about to move forward and make decisions based on
the information they know. "We can change this," she said.
CHAIR HUGHES asked her to give some background on the Ashley
Johnson-Barr case.
1:43:51 PM
DR. LOWRY said the earliest news stories about the Barr Case
referenced a report that she was discovered with ligature marks
on her. Dr. Lowry said she had to look up what that meant. Those
are marks are made by tying something around, whether a rope or
a cord. There are two different types of strangulation. One is
manual when people use their hands, arms, or foot to apply
pressure. The other is when something is wrapped around to stop
the flow of oxygen. She was struck by how painful that must have
been.
SENATOR REINBOLD asked if she were testifying for or against the
bill.
DR. LOWRY said the network was not prepared to take a firm
stance. They are very much in support of all the elements of the
bill. Since they are a membership-based organization, she must
go through committees to make sure the network is in agreement,
so that when she says the network is in support, the committee
will know that all members are in support. They have a meeting
tomorrow and should be able to submit letters clearly
articulating what they do support.
SENATOR REINBOLD asked her to submit any ideas for amendments.
1:46:32 PM
ELIZABETH WILLIAMS, Cofounder, No More Free Passes, Anchorage,
stated that No More Free Passes is a nonpartisan advocacy group
founded in September 2018, the day after the Justin Schneider
sentencing. The crime that he committed was so horrible that it
sparked state and national outrage. It was covered by smaller
papers and the New York Times, the Washington Post, and Al
Jazeera. The state of Alaska's response was shockingly
inadequate. They felt that mistakes were made by the
prosecutors, mistakes in law have been in place for decades, and
mistakes were made by the judge and by the state in their
response to the public outrage. They were grateful when former
Governor Walker proposed legislation to close the semen
loophole, but that did not go far enough. That is why the group
formed and why they are focusing on legislative advocacy.
MS. WILLIAMS said they felt, as Governor Walker had proposed,
that the semen loophole had to be closed, that nonconsensual
contact with semen needed to be included in the definition of
sexual contact. What really haunted her was that the other part
of the assault also received no jail time. That was
strangulation. The fact that Justin Schneider's victim passed
out thinking she would die and that his eyes were the last thing
she would see and the fact that she is now at risk for TBI
[traumatic brain injury], PTSD [post-traumatic stress disorder],
amnesia, depression, anxiety, mood changes keep her up at night,
and the fact that the state of Alaska thought that he deserved
zero jail time.
MS. WILLIAMS explained that strangulation has been described as
the waterboarding of domestic violence. Nothing is more
terrifying than the feeling of being unable to breathe with an
inability to fight this person off. A lot of strangulation takes
place in the home with children around. She was a social worker
in Bethel for a year and a half. She worked with lots of
children. One of the worst things that children would tell her
was that "daddy chokes mommy." Exposure to domestic violence is
the most negative thing that can happen in a child's life. It is
more negative than children actually experiencing physical
violence themselves. That is why she asks that strangulation be
taken extremely seriously in the criminal code.
MS. WILLIAMS asked what can be done about strangulation and
sexual assault. She did not believe incarceration was the answer
to everything, but incarceration gives a victim time to get her
life back together, not just go to a shelter for a few weeks and
return to that home. She could have time to get a job and get
her own house. Incarceration means a number of years in which
children are not going home to a war zone. The third portion of
SB 12 eliminates credit for electronic monitoring. Credit for
electronic monitoring came about in 2015 through HB 15. SB 12
would eliminate it for sexual assault offenses. They believe
that sexual assault should equal jail time, not time spent at
home. Justin Schneider spent the total of his sentence, one
year, sitting in a luxury home overlooking Kachemak Bay.
MS. WILLIAMS said that giving credit for time spent on
electronic monitoring at home means defendants have an incentive
to delay a trial for as long as possible. They can be convicted,
but they may have already served much of their sentence at home.
That incentive to delay trials is terrible for victims. A victim
might have the motivation to report her assault the morning
after and testify before a grand jury or at a bail hearing, but
to expect her to come back three years later to testify about
something she wants to forget is too much to ask. It is also bad
for the public. People facing trial at home still have access to
children, unless a judge has specifically forbidden contact, and
the public.
MS. WILLIAMS said that her group supports both bills. SB 12 and
SB 35 will work together well. SB 12 will make assault where
loss of consciousness can be proven assault in the first degree,
the most serious type of assault. Where loss of consciousness
cannot be proven, it will still be assault in the second degree.
SB 35 increases the sentencing range, so prosecutors will have
two different tools. Alaska needs action, not awareness. Alaska
has done awareness campaign after awareness campaign and
authored study after study. The time for that is over. They have
the numbers. Alaska is the worst in the nation. It is time make
real change.
SENATOR REINBOLD thanked Ms. Williams for her insights into the
law.
1:54:09 PM
SENATOR MICCICHE said the public was mortified, angry, and
sitting around in disbelief about the Schneider case, but a lot
of people didn't know what to do from there. Ms. Williams
mobilized, put the right folks together, and called policy
makers. He said she had helped to motivate him. They had been
looking at where to go since the incident. She helped motivate
him on not trying to change the entire criminal justice world,
but to fix what happened with the Justin Schneider case. That's
what this bill is about because the public deserves that. They
need to know that this is not going to happen again. He thanked
her for her help in keeping pinpoint focus on this case over
which so many Alaskans lost their faith in the system. "We can
bring them back by letting them know that when these things
occur, we're going to stop them," he said.
1:56:26 PM
KEELEY OLSON, Executive Director, Standing Together Against Rape
(STAR), Anchorage, thanked the committee for advancing these
bills which address loopholes in state statute. Each of the
loopholes addressed by the bill are policy priorities set by
STAR. They illustrate the dire need across the state to hold
sexual predators accountable. She cannot agree more strongly
with these proposed bills. She wanted to give examples to show
the importance of updating these statues.
MS. OLSON said she imagined that SB 12 was drafted with the
tragic murder of young Ashley Johnson-Barr in Kotzebue and the
unfortunate sentencing of Justin Schneider in mind.
Strangulation is a hideously common form of violence used in
conjunction with sexual assault. Traumatic brain injuries in
survivors can be attributed to strangulation to the point of
unconsciousness, sometimes repeatedly. She recounted a story of
working with a young woman years ago who had come to the STAR
office for assistance. She had been strangled during a sexual
assault, released from the hospital, but collapsed at the office
and never regained consciousness and died. Her offender was not
held accountable. Richard Dale Abrahamson was a registered sex
offender from Iowa. He told police he moved to Alaska for a
fresh start in 2016. He thought he did not have to register in
Alaska. This was before the supreme court ruled that registered
sex offenders from other jurisdictions would have to register.
He is accused of sexually abusing a 13-year-old boy within days
of his arrival. Even though he made admissions of abuse and
there was filmed abuse on his camera, the case just went to
trial at the end of January 2019, nearly three years later. He
is awaiting sentencing and appears to have been acquitted of
some of the charges.
MS. OLSON said that the Justin Schneider case illustrated the
need to include masturbation without consent as a sex offense.
The only concern she has about the current wording in the bill
is whether it requires the offender climax to be considered a
sex offense. The current wording is "to engage in masturbation
and ejaculate on a person without the consent of that person."
She asked that if they were looking at the Schneider case, if he
had not climaxed, would the victim be any less sexually
assaulted. She suggested considering "masturbation without
consent for the purpose of sexual gratification" rather than
requiring ejaculation as a factor in the law.
MS. OLSON said that removing the marriage defense is a critical
need. There have been several cases of sexual assault in the
second degree in Anchorage that fell under this pattern. STAR
assisted a woman who had had gynecological surgery and told to
abstain from sex for four weeks. Within days of surgery she was
raped by her spouse while she was on sleep medication and unable
to consent. She required emergency medical treatment, and he was
never charged with sexual assault. The marriage defense for
sexual assault in the second degree is problematic, especially
for estranged couples who, for financial or abuse reasons, elect
to remain married and live together. This is more of a burden
for low-income people and victims of abuse whose spouses refuse
to initiate divorce.
SENATOR REINBOLD said her testimony really makes them want to
get the bills to the finish line. She asked her to let them know
of any loopholes that she sees.
CHAIR HUGHES said that they would follow up with her question
with the Department of Law about the language about climax.
SENATOR MICCICHE said folks need to understand that just because
they might have learned about strangulation being used as a
method of sexual assault in the Justin Schneider case, it is not
a rare tactic.
2:04:41 PM
VICTORIA SHANKLIN, Executive Director, Victims for Justice,
Anchorage, said her organization serves victims of violent
crime, especially victims of assault, arson, robbery, and
homicide. Unfortunately, it's not uncommon for offenders in
their cases to have had priors and for those to not have been
taken as seriously as they should have been. They support SB 12
and SB 35 and anything that strengthens the system prior to the
crimes resulting in a homicide.
SENATOR REINBOLD asked how the organization is funded and
whether they have the resources they need to deal with the
incredibly high rise in crime and victims.
MS. SHANKLIN replied that that they are a small organization
with four full-time employees and one part time. They are
working on increasing that. With the increase in homicides and
the number of people who are impacted, it is a struggle for
them. They are funded by a series of state, federal, and
municipal grants. One quarter of their budget comes from
individual donations.
CHAIR HUGHES thanked the testifiers and said she knew that they
would like to work themselves out of a job. As was stated
earlier, it is time to create action.
2:08:07 PM
CHAIR HUGHES opened public testimony.
KATIE BOTZ, representing herself, Juneau, said she originally
was from Kodiak. She recounted how she was a victim of sexual
abuse at the age of 12 in her home. As many statistics show,
victims often know the person. In this case, it was a friend of
her brother's. She was 12, and he was 18. The abuse included
being strangled. Her mother finally caught him in the act. This
devastated her mother, which broke Ms. Botz' heart. Her mother
kicked him out and called the cops. After going to court and
having the rape kit done, to this day she wishes he had more
than six years in prison. She remembers it as if it were
yesterday. For five years every night, she cried herself to
sleep. It took her 12 years to recover from her abuse. She read
SB 35 line by line. As a victim of sexual abuse, she supports
it. Alaska has the highest sex crime rate in America. If
protecting the public is in the best interest of the government,
Lower 48 residents coming to Alaska shouldn't be limited to
register under AS 12.63.100. All Alaskans residents should have
the right know who they are associating with. Incitement of a
minor is still a crime, regardless of how it is committed.
Regarding Section 6, people should be properly identified as a
sex offender. Regarding Section 7, line 27, of SB 35, sexual
harassment is not only embarrassing but authorities often don't
have proper respect for it, which makes it difficult for victims
to go to a supervisor. She asked the committee to have something
to help victims feel more comfortable reporting sexual
harassment. Regarding Section 14, imprisonment of less than ten
years does not do justice for victims. The defendant will have
freedom in less than 10 years, but the victim has lifelong
knowledge that she was abused. She urged a sentence of 20 years
for victims aged 13 years and older and 30 years for victims
under 13, so that victims can have peace of mind.
CHAIR HUGHES thanked her for her brave testimony. It hit them at
the heart level and at the head level and they know work is
needed.
SENATOR REINBOLD said only one percent of rapists end up in jail
in Alaska, according to the statistics. That crushes her heart.
Ms. Botz made some excellent points. A lot of the criminal
justice system does not focus on victims.
SENATOR MICCICHE said he appreciated her courage. She is helping
to save others by being there. Section 14 is a subset for the
more serious crimes they are dealing with. In both bills, longer
terms can be extended for aggravators.
2:17:52 PM
DIANE SCHENKER, representing herself, Anchorage, said she
supported both bills. She said she is ashamed of her home state
for having such poor laws that Justin Schneider was allowed to
kidnap, strangle to unconsciousness, and ejaculate on a woman
and then waltz out of the courtroom with zero jail time. She
cannot fully convey her anger, resentment, and sheer fatigue
from being female in a state that has been the nation's worst
for tolerating violence against and disrespect for women. She
spent 30 years working in Alaska's criminal justice system,
including eight years as a correctional officer and sergeant
working in the state's first institutional sex offender
treatment program. She has rarely seen sex predators held fully
accountable for the lifelong damage they cause their victims. In
the last several years, their laws have become even more
unbalanced in favor of criminals over victims. She said to never
underestimate the power of sexual predators, who are master
manipulators, to get people to feel sorry for them. These bills
finally take steps in the right direction. She urged them to
break records to pass them quickly, just as voters in the third
judicial district broke records unseating a judge who failed to
protect their interests.
MICHELE VASQUEZ, representing herself, Soldotna, Alaska, said
she supports SB 12, which closes the Schneider loophole in the
Alaska criminal code. Most in Alaska were outraged when Justin
Schneider walked out of court with time served on an ankle
monitor as his only punishment after he kidnapped and strangled
a woman and performed a sexual act over her unconscious body.
This was a violent sexual assault. No who commits such an act
should be allowed to walk away without serving time. She would
like an amendment to SB 35 to protect sex workers from sexual
assault or coercion into sex acts by some in law enforcement
prior to arrest. The state must do everything in its power to
protect all from any kind of sexual assault, abuse, or coercion.
2:21:38 PM
MIKE COONS, representing self, Palmer, stated his support for SB
35 but wants to see tougher sentencing. He said section 15, page
7, lines 15-17, " A defendant convicted of (1) sexual assault in
the first degree, sexual abuse of a minor in the first degree,
or sex trafficking in the first degree under AS 11.66.110(a)(2)
may be sentenced to a definite term of imprisonment of not more
than 99 years . . ." From thereon, in other pages, there is
lesser and lesser sentencing. There is always "if first
offense." Victims live with pain for the rest of their lives, as
the first testifier stated. Victims need time for healing. The
lowest of the low who commit these crimes may face some time in
prison, but they will offend again and again when released back
in communities. These predators, once caught, need one thing and
one thing only. Life in prison, no parole, no time off for good
behavior. There should be a wing in prisons for just these
predators. This has gone on too long. Predators will rape and
defile over and over, until they die in prison or are taken out
by law enforcement or private citizens protecting themselves. He
asked the committee to please change sentencing for predators to
show they are not welcome in Alaska.
TANIA SILVA-JOHNSON, representing herself, Kodiak, said she
supported SB 12 and SB 35 and wanted to echo what others had
said. She shared that she was raped her senior year of high
school. Since then, she has continued to speak out in her
community to raise awareness and help other victims come
forward, if they so choose. She has discovered that so many
women she went to school with at Kodiak and at the University of
Alaska Fairbanks were also raped by someone they knew and never
reported it. She said why report when there are no consequences.
They need accountability. Surviving a rape requires intensive
therapy, and even when overcome, that scar is still there. It is
critically important that they have accountability. "So often we
hear, do they deserve to lose this, do they deserve to lose
their career. Yes. The price has been too high for victims and
for too long," she said.
CHAIR HUGHES thanked Ms. Silva-Johnson for her bravery and for
connecting low reporting to sentences that are lenient. If
sentences are tougher, reporting will probably go up.
SENATOR REINBOLD said her story, sadly, in Alaska is common. It
is not just about this bill. She asked her to continue to
communicate her concerns. Senator Reinbold said she has heard,
for example, of bad court rules that need to be changed. Her
fight is worth fighting. It has risen to be one of their top
priorities.
CHAIR HUGHES, after determining that no one else wished to
testify, closed public testimony on SB 12 and SB 35. She noted
that they would continue the sectional on SB 35.
2:28:05 PM
JOHN SKIDMORE, Director, Criminal Division, Department of Law,
Anchorage, continued presenting a sectional analysis of SB 35.
He said the committee left off at Section 13. Since Section 13
is similar to what is in SB 12, he would start with Section 14.
SENATOR REINBOLD said the last line of Section 12 was written
bizarrely and could be interpreted in many ways. She recommended
that he revise it to make it clearer.
MR. SKIDMORE asked for clarification about whether there was
something wrong with the way the bill was written or just the
sectional analysis.
SENATOR REINBOLD answered the sectional analysis.
MR. SKIDMORE said they would look at how to amend that to make
that clearer. He restated that Section 13 would become part of
SB 12. Section 14 creates an enhanced sentencing structure for
assault in the second degree. It is in this particular bill
because that subsection of assault in the second degree is
talking about strangulation. In criminal justice reform, when
all the presumptive sentencing ranges were adjusted down, this
specific class B felony went from one to three years down to
zero to two. This particular subsection moves it back to one to
three so that anyone who did engage in assault in the second
degree, which includes the conduct of strangulation, would be
facing a presumptive of one to three years. This is
complementary to what Senator Micciche has done in SB 12, which
has strangulation to the point of unconsciousness as an A felony
as opposed to a B felony. Section 14 is somewhat overlapping of
a section in SB 32, which was seeking to remove all sentencing
back to where it was prior to SB 91. If SB 32 does not make it
through the legislature, then this particular section in SB 35
ensures that at least those assault offenses that include
strangulation would have that increased sentencing range.
SENATOR REINBOLD clarified that he is suggesting changing the
sentencing from zero to two years to one to three years. "Is
that all the value a victim's trauma is worth?" she asked.
2:32:10 PM
MR. SKIDMORE responded that prior to SB 91, class B felonies for
a first offense was sentenced at one to three years, a second
offense was four to seven, and the third was six to ten. Under
SB 91, the first offense was reduced to zero to two. He cannot
recall the provisions for the second and third offenses but
could look that up. This bill proposes to return those
provisions to where they were before SB 91. As far as her
question of is that amount of time appropriate, that was in
statute prior. There are aggravators to look at. If the
committee thinks the levels are not high enough, they are always
willing to work with the committee on that.
CHAIR HUGHES said she had talked with the Department of Law that
morning about that same concern. She was surprised about the
minimal amount of time. She stated that she also had discussed
with Senator Micciche the distinction between strangulation for
the purpose of hurting or intimidating someone, but when
connected to sexual offense, it is not only to hurt and
intimidate the person but to also take advantage of the person.
That rises to a different level of concern, so they are looking
at how they might address that.
2:34:04 PM
SENATOR REINBOLD said she is just appalled that if they get
caught the third time, their penalty is only six to ten years.
"It makes me realize why there is so much crime up here. Even
pre-Senate Bill 91 I said I thought our laws were way too soft.
That's why I thought it was absolutely incredibly lunacy to pass
SB 91. I think everybody in the state probably knows about that
by now, but to think that we had such dramatic domestic violence
and sexual assault in Alaska and then passed that bill that
lowered the sentences, that ended up letting people earn credit,
that produced this silly pretrial risk assessment tool that let
so many people out. This just makes me shocked that for the
third time they do something like that, even with the
correction, it's six to ten years and then you add on the earned
compliance credit and all that stuff and they might be walking
really quickly. I just don't think this is enough," she said.
SENATOR MICCICHE said to clarify for the public, if they make
the changes they are talking about, there will be three levels
of strangulation. He asked Mr. Skidmore to clarify that in
Section 14, this is strangulation, charges of assault, not
strangulation that results in someone becoming unconscious or
strangulation resulting in a sexual assault.
MR. SKIDMORE answered correct. Section 14 is just about
strangulation as they have it under the law now. SB 12 creates a
second tier of strangulation offenses where someone is strangled
to the point of unconsciousness. The concept that Chair Hughes
discussed is trying to have some enhanced sentencing for
strangulation associated with some sort of sex offense. That is
not in any bill currently, but it is a conversation they started
this morning. They are interested in working with the committee
with any amendments they might have.
2:36:36 PM
SENATOR MICCICHE said he is just clarifying for the public that
they are repealing that section of SB 91 and adding two
additional layers of much stricter law on top of 91. It is easy
for people who watch periodically to become confused. If they
make the amendment to SB 12 that she is talking about, they will
have three layers, with two layers related to unconsciousness
and sexual assault being significantly stricter.
CHAIR HUGHES said to be transparent, since this is a process, it
looks like they will put all things regarding strangulation into
SB 12. They are going over SB 35 now, but will combine
everything in SB 12 for clarity, so the public and the next
committee of referral will be able to grasp what they are doing
with that.
SENATOR REINBOLD stated the sentencing ranges: if a first
felony, (A) a child under age 16, two to four years, with 16 or
older, one to three years, if the offense is a second felony,
two to five years, a third felony, four to ten years, and they
could go on. She added that there are all those other ways they
can earn credit, such as with electronic monitoring. They are
not taking violent crime seriously enough in this state. "I
stand firm in my beliefs," she said.
2:39:01 PM
MR. SKIDMORE directed attention to Section 15, which adds an
offense for sexual abuse of a minor in the third degree. It will
increase the sentencing if there is a six-year age gap. Sexual
abuse of a minor in the third degree is when a victim is 13, 14,
or 15 years of age and there is a four-year age difference
between the offender and the victim with sexual contact. This
section of the bill says that that if they are close in age,
four or five years apart, it is still a felony, but not a sexual
felony. Under AS 12.55.125(i), there are provisions that have a
greater presumptive sentencing range for sexual offenses than
for a regular felony. Sexual abuse of a minor in the third
degree is currently classified as a regular C felony and does
not carry with it those enhanced sentencing ranges for a sexual
felony. If it did, it would be two to 12 years for a first
offense as opposed to zero to two. This section increases it to
that two to 12 years when the age difference is six years or
more. The idea being that while it is still against the law if
there is a four- or five-year age difference, once they get to
the six-year age difference, it is seen as that predatory
behavior. A testifier earlier was an example of a six-year age
difference. This is the level at which bill proposes to turn it
into a graver offense that carries much more significant
penalties.
2:41:31 PM
MR. SKIDMORE said that Section 16 would clarify prior felonies
for purposes of sex offenses. When they began the sectional
analysis, there was some intent language to overturn a case that
said for a sex offense to get to the higher presumptive ranges,
if there had been a prior offense to get to the higher
presumptive range, if that prior had been a sex offense, then
the current offense would be deemed a higher level on the
presumptive range with a greater sentence, but if the prior
offense was a non-sex offense, it was applying a ten-year
limitation in looking back for those offenses. That is to say,
with presumptive sentencing, the prior felony only counts if it
is within a certain time frame in order to increase sentencing
for the current offence. For sex offenses there is no time
frame. For all other felonies, there was. A court was
interpreting the statute as though there was a time frame for a
prior non-sex felony when determining presumptive sex
sentencing. This section removes that to say that if someone has
been convicted of a felony before, it does not matter how long
ago that conviction was, it will result in an increase in the
presumptive range for the current sex offense. That is what
Section 16 does.
CHAIR HUGHES clarified that there is no time limit and any
felony would count, not just sexual felonies.
MR. SKIDMORE answered correct. The current law says a non-sex
prior can increase sentencing, but only if it is within ten
years. This removes that ten years to make it clear that the ten
years should not be considered when someone is currently
sentencing a sex offense, regardless of whether the prior was a
sex offense or non-sex offense. It gets rid of the time frame
for presumptive sentencing.
MR. SKIDMORE said Section 17 is a conforming amendment dealing
with the crime of enticing a minor.
MR. SKIDMORE turned to Section 18, which he said adds sexual
abuse of a minor to the third degree when there is six-year age
difference. It is sort of a conforming amendment, but this adds
it to the definition of a sexual felony, which is significant.
This is not the section that increases the sentencing range, but
it does have other impacts by defining it as a sexual felony.
For instance, this impacts the treatment that can be imposed. It
also affects whether there would be early termination. This
definition has consequences not only for the amount of jail time
imposed, but in terms of other factors that are considered in
sentencing. They want to change this definition to ensure that
sexual abuse of minor, when there is a six-year age difference,
has all these other aspects that are important to the
sentencing.
2:46:11 PM
MR. SKIDMORE said Section 19 adds a person who is required to
register as a sex offender or child kidnapper from another
jurisdiction to the element of sex offender or child kidnapper.
Section 19 goes back to the intent language that they discussed
in the previous hearing where they were overturning an appellate
case that said individuals from another state, when they are
required to register in that other state for that conviction,
would not necessarily have to register in Alaska. They are
changing the language of Alaska's law, so they are required to
register in Alaska. That intent language relates to Section 19,
he said.
SENATOR MICCICHE said that for Section 15 and 18, he thought it
was sexual assault because someone was under the age of consent
because it requires consent to not be a sexual assault. He asked
for the age of consent in Alaska.
MR. SKIDMORE said they don't call it sexual assault. They refer
to it as sexual abuse of a minor. Sexual abuse of a minor does
not carry an element of consent or lack of consent. It just says
when the sexual act occurs between these individuals. There are
a series of factors that look at that to say that there is no
possibility that consent occurred here, this is just criminal.
MR. SKIDMORE said there are a series of factors because the age
of consent is generally deemed to be 16, in layman's terms, but
the statutes talk about it when the victim is 13, 14, or 15 and
other statutes talk about the victim being under the age of 13.
But for 13, 14, or 15, consent is not an element. It only
becomes an element for sexual assault when the person is over
the age of 16.
SENATOR MICCICHE said it just gets to his question, which is if
they are under the age of ability to consent, why is it not as
serious, whether or not there is a six-year difference in age.
2:49:03 PM
MR. SKIDMORE responded that he wanted to be clear that the
rationale he would be giving is not his opinion, but an
explanation what the law says. The concept is that if young
people close in age decide to be involved in a relationship that
involves physical sexual conduct between the two, society has
said that when the individuals are close in age, they do not
want to turn either into a sex offender who has to register or
go to jail. While parents may not approve, it is not a crime
that needs to be punished by jail time and other consequences.
The state has chosen 16 years of age as the age of consent and
Alaska's laws require at least a four-year age difference before
it becomes criminal. The four-year and six-year age difference
are both illegal, but the bill has greater punishment for a six-
year age difference.
CHAIR HUGHES noted that the committee had had quite a discussion
about the sex offender registry. She referenced a recent KTVA
news story and quoted, "A sex offender from Iowa said he chose
to move to Alaska believing he wouldn't have to register as a
sex offender. He was right--and it's a reality that would
continue, even if the governor's crime bills are passed." This
particular sex offender was convicted recently for sexual
assault of a child that included penetration, which occurred
just days after the offender arrived in Alaska. She asked if the
provisions of SB 35 don't close this gap because there is no
registry requirement for persons convicted of sex crimes as a
juvenile, which is the case for this particular child rapist. If
they amended SB 35 to include this requirement for those
adjudicated for sex crimes as juveniles, she asked what they
should consider from the Department of Law's perspective.
MR. SKIDMORE said that the state of Alaska does not require any
juvenile adjudicated of sex crimes to register. There is some
debate within the state about whether requiring juveniles to
register would violate the state constitution. That has not been
determined by a court of law. That is an open and ongoing debate
within the legal community. As to her question about requiring
individuals from out of state, when they are required to
register in another state as a sex offender for a juvenile
adjudication, SB 35 does not require that because of the
constitutional discussion. If the committee wants to propose an
amendment like that, the department will need to look at the
language carefully and could provide a more detailed policy and
legal analysis about the concerns with the law. There are other
states that require juveniles when they are adjudicated to
register. Alaska is not one of those. If the committee is
interested, he could provide a memo that outlines it more
thoroughly.
CHAIR HUGHES asked him to provide that and to be thinking about
how the committee could do that.
SENATOR REINBOLD said, "I guess this has just been a point of
contention since I got down to Juneau, is a lawyer trying to
tell us what is constitutional and what's not when we're told
that is the role of the courts, not a random lawyer. That really
bothers me when people start using that as a defense of why not
to do things." Public safety is supposed to be first with the
administration. These mothers and daughters want to know if
someone has been convicted. They need to get these people to
register, so people are aware early and do what they can to
protect their daughters. She is a big fan of getting them on a
registry.
2:55:48 PM
CHAIR HUGHES said they would not be asking juveniles to
register, but at the point when they become adults. She noted
that they had had much discussion last week about enforcement
were they to implement the new sex offender registry laws. She
asked if they could avoid the ipso facto issue that they
discussed for enforcement as long as the offenders who are
current residents in the state are provided a period of time to
register once the law is passed. If the law were to take effect
immediately, could it include a provision that anyone already in
the state would have 90 days to comply with the new law by
registering with the Department of Public Safety. She wondered
whether that would work. They wouldn't be charged for not
registering when they first arrived in the state, but they could
be charged for not registering within certain dates.
MR. SKIDMORE said he would need several days to do research. Any
time that he is testifying about any legal analysis, he tries to
make sure that they have had time to do a thorough legal
analysis.
SENATOR MICCICHE said there a lot of areas to look at. They have
public documentation in other states of individuals required to
be on the sex offender registry but not in Alaska. It may be an
outside of the box thing to look at. He thought the term was ex
post facto on double jeopardy. The reality is that they are not
reconvicting and repenalizing. They are simply communicating a
postconviction condition from elsewhere. If there is something
they really want to push, they could change SB 35 while doing
sexual assault issues in SB 12, keeping that clean, and doing
some of these other issues in SB 35.
MR. SKIDMORE said Section 20 adds the crime of indecent viewing
or production of a person under the age of 16 or the indecent
production of a photograph of an adult to the list of
registerable sex offenses. They had some discussion last time
about how this particular crime is broken down into four
categories. There is the actual viewing, there is the production
of the photograph, and is the victim a child or is the victim an
adult. This section says that if the victim is a child, either
for that viewing or the production, or for the production of a
photograph where the victim is an adult, in those three
circumstances, which becomes a registerable sex offense. It is
not currently under the law, but Section 20 would change that.
MR. SKIDMORE said Section 21 clarifies that a person ineligible
for a good time deduction from their sentence would also be
ineligible for discretionary parole. There is discretionary and
mandatory parole. If people behave while in custody, they are
released after they have done two-thirds of the time. This
section says that if they were ineligible for good time, that
mandatory parole, then they would also be ineligible for
discretionary. It restricts parole eligibility and ensures that
those two marry up with each other. It is in this bill because
that applies to a number of sex offenses.
MR. SKIDMORE said that Section 22 is the repealer. Only two
sections are repealed and those are consistent with other
policies they have already talked about throughout the bill.
Section 23 is the applicability and eligibility date.
3:01:58 PM
CHAIR HUGHES said she wanted to raise a new topic regarding the
fact that in the Justin Schneider case there was the question of
whether it involved an element of kidnapping. She believed that
the Judiciary Committee should explore the question of whether
prosecution has the tools it needs to prove kidnapping. In the
Schneider case, the victim went into vehicle willingly and was
not restrained, but when a vehicle is moving, someone cannot
walk away. The prosecution felt a kidnapping charge could not be
proven. She asked him to explain for the record how the facts of
this case led to the prosecution dropping the kidnapping charge.
She asked how often kidnapping convictions happen in Alaska and
whether the Department of Law should ask for a change in statute
to avoid dropping kidnapping charges. Her sense is that vehicles
are often used to take young females to areas for sexual
assault.
MR. SKIDMORE explained that kidnapping is found in AS 11.41.300.
It says that kidnapping is if a person restrains another with
the intent to inflict physical injury upon or sexually assault
the restrained person or to place the restrained person or third
person in apprehension that any person will be subject to
serious physical injury or sexual assault. The restraint is
later defined to restrict a person's movements unlawfully and
without consent so as to interfere substantially with the
person's liberty by confining the person in place where the
restriction commences, and the restraint is without consent if
it is accomplished by force, threat, or deception. Deception can
qualify, but the difficulty with the Schneider case is the
victim had requested a ride. She was taken in the direction she
asked to go. They have to decide at what point does deception
kick in and how far was the distance from that point in time
until the offense occurred. Mr. Schneider was indicted for
kidnapping originally, but they must look at case law along with
statutes.
MR. SKIDMORE said the case law says that when a person restrains
another with the intent to facilitate the commission of that
offense, that restraint will not constitute a separate offense
of kidnapping if is merely incidental to the commission of the
offense. That case law comes from a court of appeals case called
Alam. There were two Alam decisions, one in in 1989 and one in
1990, for the same case, but looked at twice by the court of
appeals. The Alam decisions were about the concept of incidental
restraint and what is the change in circumstances regarding
location, where does deception kick in. With that sort of
analysis, when they looked at the Schneider case more carefully,
they decided that they would not meet their obligation to prove
beyond a reasonable doubt that that deception occurred. She was
willingly in a vehicle. They came to a location, they stopped,
and he said he needed to find something he left in a parking
lot. When they get to the parking lot, he asked her to step
outside, and only when he tackled her did it become obvious at
that point that she was not willing to do any of this. At that
point they realize there is deception, but they did not have
sufficient evidence to prove when the deception started.
MR. SKIDMORE said he did not know whether something ought to be
changed in the law. He would need to look at the Alam opinions
more carefully. The Department of Law would need to research
what precisely would need to be changed, whether it would be
statutory, case history, or constitutional in order to provide
any guidance.
CHAIR HUGHES asked him to think outside the Justin Schneider
case as he considered whether a tool might be helpful to
prosecution. It is a fact that young women are often tricked
into riding in vehicles for the purpose of sexual assault.
SENATOR MICCICHE said it is important that the public know that
he and Senator Reinbold agree that some crimes need to be
charged more seriously in Alaska, but the public needs to fully
understand what would be repealed of Senate Bill 91. The
importance of 12 and 35, other than sentencing limits, is that
most of these problems with their sexual assault laws are
decades old. These are not new problems, which makes them
different from the other series 30 crime bills repealing SB 91.
This is making the laws tougher unrelated to SB 91. It needed to
happen a long time ago. Sometimes a catalyst is needed for
change to occur and many Alaskans know the outcome with Justin
Schneider case is not satisfactory. He just wanted to clear that
up. If it looked like there was disagreement, it was just him
trying to clarify the SB 91 vs. other issues to the public
because 91 has been such a lightning rod.
[SB 12 and SB 35 were held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| ANDVSA Invited Testimony SB12 and SB35.pdf |
SJUD 2/18/2019 1:30:00 PM |
SB 12 SB 35 |
| STAR Invited Testimony SB 12 SB 35.pdf |
SJUD 2/18/2019 1:30:00 PM |
SB 12 SB 35 |
| Written Testimony SB 35.pdf |
SJUD 2/18/2019 1:30:00 PM |
SB 35 |