Legislature(1995 - 1996)

03/27/1995 01:34 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 SJUD - 3/27/95                                                                
                 HB 188 INDECENT PHOTOGRAPHY                                 
 REPRESENTATIVE MACKIE, sponsor of HB 188, stated HB 188 was                   
 introduced in response to an incident that occurred in Klawock, in            
 which video surveillance cameras were found in the ceiling of the             
 girls' high school locker room.  Community outrage was significant,           
 however there were no applicable statutes under which to charge a             
 person for that behavior.  The sexual exploitation of minors                  
 statute deals with child pornography and things for sale and                  
 redistribution.  The Department of Law helped to draft HB 188, and            
 the House Judiciary Committee ironed out several problems.                    
 Essentially, HB 188 creates the crime of indecent viewing and                 
 pornography, and would be a class C felony if it involved minors,             
 and a class A misdemeanor if it involved adults.  There is no                 
 opposition to HB 188 at this time, however the Council on Domestic            
 Violence and Sexual Assault has submitted a proposed amendment to             
 lower the age from 13 to 10.  REPRESENTATIVE MACKIE had no opinion            
 on that amendment and asked the committee to review that issue.               
 SENATOR ADAMS asked Rep. Mackie his opinion of the definition of              
 "private exposure" in the House Judiciary committee substitute.               
 REP. MACKIE stated he agreed with the changes made by the House               
 Judiciary Committee and noted the committee also added subsection             
 (e) on line 8, page 2, which deals with affirmative defense.  That            
 subsection addresses an affirmative defense for people who have               
 surveillance systems for security purposes, such as businesses,               
 that are properly posted.  A floor amendment allows such activity             
 to not be posted if it is for law enforcement or corrections                  
 Number 428                                                                    
 SENATOR ELLIS asked if subsection (e) is so broadly written that it           
 would prevent a prison guard from being prosecuted for videotaping            
 a prisoner without approval.  REP. MACKIE stated he assumed if the            
 guard was doing it for personal reasons, without approval, he/she             
 would be in violation of the statute.  SENATOR ELLIS commented the            
 language implies it would not apply to anyone in a correctional               
 facility.  REP. MACKIE noted page 2, line 6, clarifies that the               
 surveillance must be conducted for a law enforcement purpose.                 
 Number 410                                                                    
 SENATOR ELLIS questioned whether the "reasonably believed standard"           
 is a well-substantiated test.  REP. MACKIE replied he believes it             
 is; that language was constructed by Laurie Otto and Dean Guaneli             
 in the Department of Law.  He added part of the criteria for                  
 prosecution should include whether the person had a reasonable                
 expectation of privacy.                                                       
 SENATOR ELLIS asked about that expectation in dressing rooms in               
 clothing stores.  He commented if the purpose is to apprehend                 
 shoplifters, the purpose would be legitimate, however if an                   
 employee used the tapes for personal use, the distinction would be            
 unclear.  REP. MACKIE replied the House Judiciary Committee went              
 from one extreme to the other, then took a moderate approach                  
 regarding notification of surveillance.  He stated if notice of               
 surveillance is posted, the customer is aware.                                
 SENATOR TAYLOR asked if CSHB 188 (JUD)am requires that a                      
 photographic reproduction of some kind be produced or that a                  
 person, knowingly, views the private body parts of another person.            
 REP. MACKIE clarified it creates a crime for either/or.  Viewing              
 was added to cover a situation in which a person might not                    
 videotape the locker room, but view it.                                       
 Number 335                                                                    
 SENATOR ELLIS asked if the penalty is the same for viewing and for            
 producing tapes.  REP. MACKIE replied affirmatively, and explained            
 it is constructed to include several criteria for the judge to use            
 when determining the sentence.                                                
 SENATOR TAYLOR asked what other states have done to remedy "Peeping           
 Tom" situations.  REP. MACKIE responded he has requested that                 
 information but does not have it.  He added his intent was to                 
 remedy the situation that occurred in Klawock, not to create                  
 legislation to deal with all "Peeping Tom" situations.  He offered            
 to get information from other states.                                         
 Number 315                                                                    
 SENATOR TAYLOR indicated he understood the concerns addressed by              
 CSHB 188(JUD)am, but did not believe the bill should be so broad in           
 scope that several pages of exceptions need to be included.  The              
 bill needs to be targeted to avoid constitutional problems.  He               
 discussed problems with viewing nude beaches, and different                   
 perceptions of privacy.  REP. MACKIE replied the nude beach                   
 scenario was discussed at the Dept. of Law, and the attorneys felt            
 a person cannot expect a reasonable expectation of privacy in such            
 a situation, therefore such a case would not be prosecuted.  The              
 same situation would hold true if a person stood in front of a                
 window in a home on a busy street.  He reiterated the bill was                
 drafted as narrowly as possible to avoid the inclusion of all                 
 "peeping Tom" situations.                                                     
 Number 264                                                                    
 SENATOR TAYLOR noted this bill covers the mental states of both the           
 viewer and the victim.  The court would have to determine the                 
 legitimacy of the victim's expectation of privacy, and whether the            
 viewer viewing for an appropriate purpose.  He suggested those                
 questions are very subjective.  He indicated his desire to review             
 what other states have done to remedy the problem.                            
 SENATOR ELLIS asked about the relationships between the parties               
 involved that might exempt them from the crime.  REP. MACKIE stated           
 a party would be exempted if the other party gave permission.                 
 SENATOR ELLIS asked if a couple were married, but one spouse does             
 not give permission, the viewing or photography would be considered           
 a crime.  REP. MACKIE was unsure.                                             
 Number 225                                                                    
 SENATOR ELLIS discussed many famous cases of litigation between               
 photographers and models over unclear agreements.  REP. MACKIE                
 clarified nothing in CSHB 188 (JUD)am exempts married couples, but            
 there is every opportunity for a person to give permission.  He did           
 not feel a person should be exempted if the other party was opposed           
 to the activity; but the court would have to decide whether reason            
 to believe there was agreement existed.  He added he did not intend           
 to include all types of scenarios in the legislation.                         
 SENATOR TAYLOR discussed the problem with paparazzi-type                      
 photographers, and with serious misunderstandings over knowledge              
 and consent.  He stated the relationship between the parties to be            
 a serious issue.                                                              
 Number 164                                                                    
 SENATOR GREEN noted page 2, lines 16 - 18, includes the language              
 "that the person reasonably believed would not result in the                  
 person's body or body parts being (A) viewed by the defendant; or             
 (B) produced in a picture;".  REP. MACKIE stated that was included            
 as a key element of prosecution.  He added without this                       
 legislation, tabloid photographers could photograph people in the             
 privacy of their own home without permission.                                 
 JAYNE ANDREEN, director of the Council on Domestic Violence and               
 Sexual Assault (CDVSA), stated the Council reviewed the bill and              
 believes it addresses a hole in the statutes.  CDVSA's main concern           
 is that the age of 13 is too high, and the implications of this               
 bill in separating out parents and grandparents who photograph                
 their children in the bathtub, from abusive photographing.  The               
 CDVSA's proposed amendment lowers the age of consent for children             
 from age 13 to age 10 to give the child rights in such a situation.           
 Number 103                                                                    
 SENATOR ELLIS asked if "age of consent" is the correct term for               
 viewing.  REP. MACKIE stated the "age of consent" for a minor to              
 engage in sexual activity is between 13 and 16; the same age limits           
 used in the bill to provide consistency with current statutes.  The           
 "age of consent" referred to by Ms. Andreen is in Section 1 of the            
 bill and requires the consent of the parent or guardian and the               
 consent of the minor between the ages of 13 and 16.  He felt the              
 question to be whether parental permission should be considered               
 adequate for 10-12 year olds, or whether the minor's permission               
 should be required also.                                                      
 Number 073                                                                    
 SENATOR TAYLOR stated by including the age in the bill, the                   
 legislature would be establishing in statute the ability of a                 
 person, 10 years old or above, to give consent to this act.  By               
 deleting the reference to age this activity could not be done                 
 without consent to a person of any age, and minority laws in                  
 statute would come into effect.  Under those laws, a minor cannot             
 give consent.  He discussed current laws for sexual activity of               
 minors that contain an illogical formula of age differences, and              
 felt those laws assist in the highest teenage pregnancy rate in the           
 civilized world.  He questioned whether the legislature should                
 establish a policy allowing children to decide who can view or                
 photograph them.                                                              
 Number 015                                                                    
 REP. MACKIE believed it would be ludicrous to allow a minor to                
 consent to sex but not to have his/her picture taken.  He noted               
 line 9, page 1, requires anyone under the age of 16 to have                   
 parental consent to take their picture, but anyone under 13 would             
 not have to give consent; the parent could consent for them.                  
 Therefore, an 11 or 12 year old could be photographed nude if                 
 parental permission were granted, even though the minor may not               
 consent.  That is the CDVSA's concern.                                        
 TAPE 95-16, SIDE A                                                            
 SENATOR GREEN commented she is not comfortable with nude                      
 photographs being taken of a nine year old.  MS. ANDREEN stated               
 several CDVSA members were uncomfortable with nude photographs of             
 children over the age of four or five; the age of ten was a                   
 compromise.  A second issue was whether or not the child was                  
 capable of giving permission.                                                 
 SENATOR TAYLOR noted concern about the issue of what children know            
 and comprehend at different ages.  REP. MACKIE stated he believes             
 a 13, 14, or 15 year old should understand what is going on, and              
 that a line needs to be drawn somewhere.  MS. ANDREEN remarked the            
 CDVSA chose the age of 10 because that is when children begin to              
 Number 050                                                                    
 SENATOR TAYLOR stated there is an entire industry that wants to               
 photograph children nude under the age of ten, and some parents               
 cannot be trusted in certain circumstances.  He did not  want the             
 bill to become a "dodging" mechanism for those kinds of people to             
 avoid punishment.                                                             
 Number 101                                                                    
 REP. MACKIE advised that child pornography laws specifically                  
 address producing films for sale.  CSHB 188 (JUD)am covers the                
 "Peeping Toms" who view and photograph people, and provides a                 
 vehicle for prosecution.                                                      
 SENATOR TAYLOR announced he would hold the bill in committee to               
 review what other states do, and to have the attorney general                 
 review the issues raised during the hearing.                                  

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