Legislature(1995 - 1996)
03/27/1995 01:34 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 purposes. 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 develop. 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.