Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/29/2012 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        SB 218-SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE                                                                    
2:08:39 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 218.                                                                             
2:08:56 PM                                                                                                                    
ANNE  CARPENETI,  Assistant  Attorney  General  representing  the                                                               
Criminal Division,  Department of  Law (DOL),  said SB  218 deals                                                               
with sex trafficking and other  sex offenses. The bill proposes a                                                               
change  in terminology  for the  crime of  promoting prostitution                                                               
sex  trafficking.  The  offense  is  the same;  it  is  a  person                                                               
victimizing another person  and inducing him or her  to engage in                                                               
prostitution.  Law  enforcement  officers  already  use  the  new                                                               
terminology  so  this  statutory change  will  facilitate  better                                                               
communication. It is also good policy  to refer to people who are                                                               
trafficked,  especially  children,  as  victims  rather  than  as                                                               
prostitutes. She provided the following sectional analysis.                                                                     
Section  3 adds  the crimes  of  human trafficking  in the  first                                                               
degree and  sex trafficking in  the first degree to  the felonies                                                               
described as "serious felony offenses"  under the conspiracy law,                                                               
AS  11.21.120. This  will  enable the  state  to investigate  and                                                               
potentially  prosecute offenders  who work  with other  people to                                                               
plan or engage in human trafficking or sex trafficking.                                                                         
The  penalty for  conspiracy to  commit this  crime is  one level                                                               
below the crime itself. Sex trafficking  in the first degree of a                                                               
child  under  age 18  is  currently  an unclassified  felony,  so                                                               
conspiracy to  commit sex  trafficking in the  first degree  of a                                                               
child under age 18 would be a class A felony under SB 218.                                                                      
CHAIR FRENCH asked if it would be  a class B felony if the victim                                                               
was not under age 18.                                                                                                           
MS. CARPENETI said  yes. She added that human  trafficking in the                                                               
first degree is  a class A felony, so conspiracy  to commit human                                                               
trafficking in the first degree would be a class B felony.                                                                      
CHAIR FRENCH asked if there  was any age differentiation in human                                                               
MS. CARPENETI answered no.                                                                                                      
Section 4 amends the crime  of distribution of indecent materials                                                               
to minors, AS  11.61.128. This change is in response  to a recent                                                               
decision by a  federal district court judge who  held the current                                                               
statute  unconstitutional in  violation of  the First  Amendment,                                                               
because  it  applies  to constitutionally  protected  conduct  by                                                               
adults. Responding to  the decision, the bill  requires the state                                                               
prove that  the defendant intentionally distributed  or possessed                                                               
with  intent to  distribute  harmful material  to another  person                                                               
that the offender knows is under  age 16 or believes is under age                                                               
16. DOL is confident that  these changes will answer the concerns                                                               
of the court in finding the statute to be overbroad.                                                                            
2:13:56 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if it would  be a crime for a 30-year-                                                               
old to  intentionally distribute  material to  someone he  or she                                                               
believes is  under age 15 even  though the person is  actually 25                                                               
years old.                                                                                                                      
MS. CARPENETI  replied it would be  a crime if they  believed the                                                               
person to  be under  age 16.  This is  to allow  investigators to                                                               
find perpetrators in an Internet context.                                                                                       
MS. CARPENETI said the next  changes occur in Sections 5-6. These                                                               
sections raise  the penalty  for being a  patron of  a prostitute                                                               
who is  a minor  under age 18,  from a class  B misdemeanor  to a                                                               
class C  felony. It  also specifies  the legislative  intent that                                                               
the  age  of the  prostitute  is  a  circumstance that  does  not                                                               
require proof of a culpable  mental state. The Legislature can do                                                               
this if it is clear that  the particular circumstance is one that                                                               
the  state does  not have  to  prove culpable  mental state.  She                                                               
reminded the  committee that  in 2007 it  put portions  of Senate                                                               
Bill 157 into House  Bill 90 making it a crime to  be a patron of                                                               
a  prostitute. This  raises the  penalty when  the prostitute  is                                                               
under age 18.                                                                                                                   
2:16:18 PM                                                                                                                    
CHAIR FRENCH asked if she had  any concern that in Alaska the age                                                               
of consent is 16.                                                                                                               
MS. CARPENETI  replied DOL is  confident that this  is defensible                                                               
because the sex  trafficking statutes deal with  minors under age                                                               
CHAIR  FRENCH  asked  if  it  was aimed  at  the  patron  or  the                                                               
MS. CARPENETI replied the increased  penalty is aimed only at the                                                               
CHAIR  FRENCH observed  that  if  the prostitute  is  age 15  the                                                               
defendant has also committed the crime of sex abuse of a minor.                                                                 
MS.  CARPENETI agreed  and noted  that Quinlan  Steiner suggested                                                               
redrafting the  provision to clarify that  the heightened penalty                                                               
applies only to the patron.                                                                                                     
CHAIR FRENCH said  he looked forward to seeing  a suggestion from                                                               
DOL about that language.                                                                                                        
MS. CARPENETI explained that Section  12 amends the corroboration                                                               
provision   for   sex   trafficking.  Under   current   law,   no                                                               
corroboration is required  of the testimony of  an alleged victim                                                               
in a prosecution for promoting  prostitution (sex trafficking) in                                                               
the first, second, and third  degrees. This provision was adopted                                                               
in  1978  when  the  criminal  code was  written.  In  2007,  the                                                               
Legislature  addressed the  promoting prostitution  statutes, but                                                               
did not  change the corroboration  to apply  to the new  crime of                                                               
promoting prostitution for sex trafficking  in the fourth degree.                                                               
It was an oversight and the bill fixes that.                                                                                    
Section 13 provides for forfeiture  of property gained or used in                                                               
promoting prostitution or sex trafficking  and it also applies to                                                               
prostitution itself.                                                                                                            
CHAIR  FRENCH asked  if  APD was  seizing the  cars  of pimps  or                                                               
MS. CARPENETI  deferred the question  to Sergeant Lacey  with the                                                               
Anchorage Police Department (APD), and continued the sectional.                                                                 
Section  16  allows   contemporaneous  two-way  video  conference                                                               
testimony of a witness in  a hearing addressing the competency of                                                               
a defendant.  It allows  this testimony if  the witness  would be                                                               
required to  travel more than 50  miles to attend the  hearing in                                                               
person  or  if  the  witness   lives  in  a  place  where  people                                                               
customarily travel  by air  to the court  site. She  reminded the                                                               
committee that a  person cannot be tried for a  crime if, because                                                               
of mental  disease or defect, he  or she is unable  to understand                                                               
the nature  of the charges  or proceedings  or assist his  or her                                                               
attorney in their defense.                                                                                                      
MS. CARPENETI explained  that this is unlike a  criminal trial in                                                               
the sense that  the full panoply of constitutional  rights do not                                                               
apply. If the  defendant is claiming incompetence,  the burden is                                                               
on him or  her to prove that by a  preponderance of the evidence,                                                               
whereas  those  burdens  are generally  for  the  prosecution  to                                                               
2:21:34 PM                                                                                                                    
CHAIR FRENCH asked if under  the current rules an objecting party                                                               
can effectively force an in-court discussion.                                                                                   
MS. CARPENETI replied that is generally the case.                                                                               
CHAIR FRENCH asked if any other state had this provision.                                                                       
MS. CARPENETI offered to follow up  with the list. She added that                                                               
the   Ninth  Circuit   Court  of   Appeals  approved   a  similar                                                               
proceeding. It clearly saves expert  witnesses time and effort if                                                               
they do not have to fly to a remote area to testify in a case.                                                                  
SENATOR PASKVAN  asked if  there was  an implied  requirement for                                                               
the expert to be licensed in Alaska.                                                                                            
MS. CARPENETI said no.                                                                                                          
Section 20 adds a new  provision to the sex offender registration                                                               
law  that requires  a  person  present in  Alaska,  who has  been                                                               
convicted of an  offense out of state  that requires registration                                                               
in  that jurisdiction,  to register  in Alaska.  This requirement                                                               
would  apply even  if Alaska  does  not have  a similar  criminal                                                               
provision. A  person would be  required to register for  15 years                                                               
if convicted  of one offense, and  for life if convicted  for two                                                               
or more offenses.                                                                                                               
Section 25 adopts Rule 38.3,  Alaska Rules of Criminal Procedure,                                                               
addressing the use of testimony  by contemporaneous two-way video                                                               
conference.  The  U.S.  Supreme   Court  approved  this  kind  of                                                               
testimony  in Maryland  v. Craig.  For this  to occur,  the court                                                             
must  find that  its use  is  necessary to  further an  important                                                               
public policy  and the witness  is unavailable. The  testimony is                                                               
given under oath  and is subject to  cross-examination. The fact-                                                               
finding has to be by clear and convincing evidence.                                                                             
2:26:12 PM                                                                                                                    
SENATOR PASKVAN asked how many courtrooms have this capacity.                                                                   
MS. CARPENETI replied  there are several, but  the real necessity                                                               
is to have a facility where the witness can go and testify.                                                                     
2:28:09 PM                                                                                                                    
CHAIR  FRENCH asked  if video  conference testimony  is done  now                                                               
with the consent of both sides.                                                                                                 
MS. CARPENETI  said yes, and  the proposed rule allows  the court                                                               
to  order it  when both  sides do  not consent.  Responding to  a                                                               
further  question, she  explained that  50 miles  applies to  the                                                               
contemporaneous     testimony     in     competency     hearings.                                                               
Contemporaneous testimony means  it has to happen live  as if the                                                               
person were  in the courtroom.  The child witness  provision that                                                               
passed in  1994, and was  amended in 2004, allows  closed circuit                                                               
television of  a child witness.  Under that provision,  the child                                                               
is not  required to  face the  defendant, whereas  this provision                                                               
requires the witness  to testify under circumstances as  if he or                                                               
she were in the courtroom.                                                                                                      
2:30:17 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if other states do this.                                                                             
MS. CARPENETI replied other states  are starting to, and it makes                                                               
sense with current technology.                                                                                                  
SENATOR WIELECHOWSKI asked if there was  a way to ensure that the                                                               
witness  is  not  referring  to documents  or  being  coached  by                                                               
another person.                                                                                                                 
MS. CARPENETI  said yes; the  proposed rule provides  that either                                                               
party could request the court  to exclude everyone other than the                                                               
video operator.                                                                                                                 
SENATOR  WIELECHOWSKI  asked  if  the  video  operator  would  be                                                               
MS. CARPENETI  said she  was not aware  of a  licensing procedure                                                               
for video operators but she would find out.                                                                                     
CHAIR  FRENCH  commented that  the  Alaska  Career Academy  could                                                               
potentially offer that certification.                                                                                           
2:32:13 PM                                                                                                                    
SENATOR PASKVAN informed the committee  that the civil rules have                                                               
announcement requirements for taking a video deposition.                                                                        
SENATOR  COGHILL asked  if both  parties would  have to  agree to                                                               
accept this type of testimony.                                                                                                  
MS.  CARPENETI  clarified  that  this  allows  the  court,  under                                                               
certain limited  circumstances, to  allow this type  of testimony                                                               
even if one party does not agree.                                                                                               
SENATOR COGHILL asked if the court would be the facilitator.                                                                    
MS. CARPENETI replied  this allows the trial court to  set up the                                                               
procedure  in  each case,  and  it  will  vary depending  on  the                                                               
2:33:36 PM                                                                                                                    
MS. CARPENETI  directed attention  to Section 19  on page  12 and                                                               
explained  that  it  conforms the  terminology  and  corrects  an                                                               
omission in  a statute  that passed last  year. That  statute put                                                               
online enticement  of a minor  into the category of  sex offenses                                                               
in  AS 12.55.125  for heightened  penalties, but  that particular                                                               
crime was not  added to the definition of most  serious felony in                                                               
the definitional section of Sec. 12.55.                                                                                         
2:35:30 PM                                                                                                                    
KATHRYN  MONFREDA,  Chief,  Criminal Records  and  Identification                                                               
Bureau,  Department  of  Public  Safety (DPS),  said  her  duties                                                               
include management of the sex offender registry.                                                                                
CHAIR FRENCH  asked her  to discuss Section  20 dealing  with sex                                                               
offender  registration,  and  describe  the  crimes  that  Alaska                                                               
statutes  do not  cover or  for which  there is  some substantial                                                               
MS. MONFREDA provided  some examples. Washington has  a state law                                                               
about  communicating with  a  minor for  immoral  purposes and  a                                                               
crime  called assault  with sexual  motivation.  The elements  of                                                               
those crimes  do not meet  the requirement  to register as  a sex                                                               
offender in Alaska.  In addition, some of the  offenses under the                                                               
U.S.  code of  military justice  do  not have  the elements  that                                                               
would require someone to register in this state.                                                                                
CHAIR FRENCH asked  if she receives inquiries on  a monthly basis                                                               
about  registering  as  a  sex  offender  in  Alaska  for  crimes                                                               
committed in other jurisdictions.                                                                                               
MS.  MONFREDA replied  her office  receives on  average three  or                                                               
four inquiries a month.                                                                                                         
CHAIR FRENCH  asked how many  were asking about crimes  for which                                                               
Alaska does not have an analog.                                                                                                 
MS. MONFREDA explained  that there were no  immediate answers for                                                               
most of the inquiries.                                                                                                          
2:38:03 PM                                                                                                                    
SENATOR WIELECHOWSKI  questioned the possibility of  laundering a                                                               
registerable crime  by moving from  state to state  before coming                                                               
to Alaska.                                                                                                                      
MS. MONFREDA offered  her interpretation of the  language. If the                                                               
offender  has  to  register  in   the  state  where  the  offense                                                               
occurred, he or she would have to register in Alaska.                                                                           
SENATOR MCGUIRE  asked if  the people  making the  inquiries were                                                               
considering a move to Alaska or were already here.                                                                              
MS. MONFREDA  replied most are  considering a move, but  some are                                                               
already here.                                                                                                                   
2:39:26 PM                                                                                                                    
SENATOR  MCGUIRE  said she  supports  the  provision because  she                                                               
wants  Alaska  to be  the  last  place  a sexual  predator  would                                                               
consider moving to.                                                                                                             
SENATOR WIELECHOWSKI asked if someone  would have to register for                                                               
an offense  that is  not illegal in  Alaska if he  or she  had to                                                               
register in the jurisdiction where it occurred.                                                                                 
CHAIR FRENCH said that's why  the committee has grappled with the                                                               
2:42:57 PM                                                                                                                    
QUINLAN  STEINER,   Public  Defender,  Public   Defender  Agency,                                                               
Department  of  Administration  (DOA), articulated  two  concerns                                                               
with SB  218. The  first is  that a  victim could  potentially be                                                               
prosecuted as a prostitute for a  class C felony under Section 6.                                                               
The other concern relates to  the confrontation clause in Section                                                               
16 regarding  video conferencing.  The issue is  still up  in the                                                               
air as  to whether or  not the full confrontations  right applied                                                               
to a pretrial hearing. He  opined that a constitutional challenge                                                               
was a  certainty because  of the public  interest and  that there                                                               
was no limitation on unavailability.                                                                                            
SENATOR WIELECHOWSKI expressed interest  in knowing how DOL would                                                               
define "unavailable." He  asked if the language  was broad enough                                                               
for  a court  to allow  a video  conference from  Hawaii where  a                                                               
witness was vacationing and therefore unavailable.                                                                              
MR. STEINER said  theoretically yes, but he would  hope the court                                                               
would not do that. Unavailability  is referred to narrowly in the                                                               
rules of  evidence and is  broadly stated elsewhere.  He reviewed                                                               
the definition on page 17, lines 22-28.                                                                                         
2:45:32 PM                                                                                                                    
CHAIR FRENCH called  a point of order to clarify  that Section 16                                                               
does not have an unavailability component.                                                                                      
MR.  STEINER agreed,  and added  that  Section 16  was a  concern                                                               
because  it allows  the court  to order  [contemporaneous two-way                                                               
video  conferencing]  without  the limitations  of  a  compelling                                                               
interest. He described  a competency hearing in  a rural location                                                               
to  illustrate the  problem. It  is time  consuming to  travel to                                                               
remote   locations   and   experts  often   prefer   to   testify                                                               
telephonically. If  a physician  testifies telephonically  that a                                                               
person  is  competent  and the  statement  is  contested,  cross-                                                               
examination to  test the veracity  and validity of  the statement                                                               
is very difficult.                                                                                                              
SENATOR WIELECHOWSKI asked him to  talk about the difficulties of                                                               
trying to cross-examine a witness over a video teleconference.                                                                  
MR.  STEINER said  one  problem  is that  it  would be  virtually                                                               
impossible  to confront  someone  with a  document  they did  not                                                               
have.   Some  cross-examination   is   conducted  without   prior                                                               
presentation  so  it  would  reduce  the  effectiveness  of  that                                                               
technique. There is also the separate question of what face-to-                                                                 
face confrontation  means. The dissenting opinion  in Craig talks                                                               
about what persisting  in testimony means when the  person is not                                                               
present.  This arises  in  competency hearings  when  there is  a                                                               
question about whether  the physician spent enough  time with the                                                               
patient to determine competency.                                                                                                
2:48:11 PM                                                                                                                    
CHAIR FRENCH  asked how  many competency  hearings are  held each                                                               
year in Alaska.                                                                                                                 
MR. STEINER estimated it was more than 20.                                                                                      
SENATOR  WIELECHOWSKI  asked  if   expert  witnesses  were  often                                                               
presented with large  volumes of evidence that they  had not seen                                                               
before the hearing.                                                                                                             
MR. STEINER said that was a possibility.                                                                                        
SENATOR COGHILL  asked if it  was the professional  testimony and                                                               
therefore that  professional's reputation that was  at stake, not                                                               
the person for which the competency hearing was held.                                                                           
MR. STEINER said yes.                                                                                                           
SENATOR COGHILL said  he was less concerned  about a professional                                                               
who did  not have all the  paperwork ahead of time  than a client                                                               
who was under light representation.                                                                                             
CHAIR  FRENCH  said  the  question  made  him  wonder  about  the                                                               
difference in  having a  jury evaluate evidence  as opposed  to a                                                               
judge. Here the competency hearing is  a legal issue decided by a                                                               
judge, whereas the  second section is about  testimony that takes                                                               
place where the  jury is the fact finder. He  observed that there                                                               
would be subtle differences in  the confrontation rights before a                                                               
judge versus before a jury.                                                                                                     
MR. STEINER  said the federal  courts used that sort  of analysis                                                               
to draw a distinction between  the confrontation that would apply                                                               
pre-trial versus  the confrontation at  would apply at  trail. He                                                               
reiterated that Alaska courts have  not specifically talked about                                                               
the confrontational clause in pre-trial competency matters.                                                                     
SENATOR  COGHILL  asked  if  there was  a  protocol  that  judges                                                               
MR. STEINER said  not under this statute, but they  could look to                                                               
the trial procedures.                                                                                                           
2:53:30 PM                                                                                                                    
SENATOR WIELECHOWSKI  commented that expert witness  testimony in                                                               
a competency  hearing can be  critical in determining  whether or                                                               
not  a person  is  sent  to prison  for  life.  He suggested  the                                                               
committee tread lightly.                                                                                                        
CHAIR FRENCH  mused about  the potential rise  in stature  of the                                                               
video conferencing technician under these circumstances.                                                                        
MR.  STEINER  agreed that  there  are  instances where  documents                                                               
become relevant through questioning.                                                                                            
2:55:25 PM                                                                                                                    
SENATOR COGHILL  asked if  just one  competency hearing  would be                                                               
MR. STEINER replied  even a simple competency hearing  can go for                                                               
more time than is allotted for a specific hearing.                                                                              
SENATOR   WIELECHOWSKI  asked   if  confidential   documents  are                                                               
presented at  competency hearing,  because this would  place them                                                               
in the hands of a video conference technician.                                                                                  
MR. STEINER replied it is all theoretically confidential.                                                                       
2:56:40 PM                                                                                                                    
MR. STEINER said all the  concerns about confrontation are raised                                                               
in Section 25. The bill tries  to comply with the requirements in                                                               
the U.S.  Supreme Court decision  in Craig, but it  broadly opens                                                               
the  question of  unavailability.  He agreed  with Ms.  Carpeneti                                                               
that availability would probably  be determined on a case-by-case                                                               
basis,   but   that   didn't  mean   the   finding   would   pass                                                               
constitutional muster.  There is also the  question about whether                                                               
or not  it is  an important  state interest.  He opined  that the                                                               
analysis should be  on a case-by-case, but the  drafting opens it                                                               
to a broad, single finding.                                                                                                     
He suggested  two potential fixes.  One is to  litigate pre-trial                                                               
with  an  evidentiary   hearing  as  to  whether   or  not  video                                                               
conferencing  is  sufficient.  The  other  recommendation  is  to                                                               
require the video  recording to be secured and  preserved as part                                                               
of the record.                                                                                                                  
CHAIR  FRENCH asked  if he  saw a  distinction between  a central                                                               
witness and a peripheral witness.                                                                                               
MR. STEINER  replied cases  can turn  on a  seemingly unimportant                                                               
witness.  He then  referred to  what Justice  Scalia said  in the                                                               
dissenting opinion  in the  Craig case. He  pointed out  that the                                                               
first time  a child may see  the accused parent is  at trial, and                                                               
if a false  statement was made it is much  easier to persist when                                                               
not confronted by their parent.                                                                                                 
CHAIR FRENCH said he looked forward to reading the case.                                                                        
MR.  STEINER  turned to  Section  20  regarding registration  and                                                               
confirmed it  was a problem  that someone would have  to register                                                               
for having  engaged in  conduct that is  not criminal  in Alaska.                                                               
That problem will persist throughout  the life of that section of                                                               
statute, he said.                                                                                                               
CHAIR FRENCH held SB 218 in committee.                                                                                          

Document Name Date/Time Subjects
SB 212 Letter of Support.pdf SJUD 2/29/2012 1:30:00 PM
SB 212
SB 212 Sponsor Statement.doc SJUD 2/29/2012 1:30:00 PM
SB 212
SB 218 Sectional Analysis.pdf SJUD 2/29/2012 1:30:00 PM
SB 218
SB 218 497_US_836.doc SJUD 2/29/2012 1:30:00 PM
SB 218
SB 218 Gigante.doc SJUD 2/29/2012 1:30:00 PM
SB 218
SB 218 ACLU Review.pdf SJUD 2/29/2012 1:30:00 PM
SB 218