Legislature(2021 - 2022)BUTROVICH 205
04/14/2021 01:30 PM JUDICIARY
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SB 122-VICTIM DEFINITION 2:14:51 PM CHAIR REINBOLD reconvened the meeting and announced the consideration of SENATE BILL NO. 122, "An Act relating to the definition of 'victim.'" 2:15:27 PM KELLI TOTH, Staff, Senator Lora Reinbold, Alaska State Legislature, Juneau, Alaska, on behalf of the sponsor, paraphrased the sponsor statement: SB122 is a bill that removes the word "adult" before the word "child" in the definition in AS 12.55.185 (C ii). By removing the word adult, the definition of a victim will include a child of a person who has been a victim of a crime when a parent or guardian is deceased. SB122 will ensure victim rights for a child of a deceased parent or guardian. She explained that this will allow a child to participate in the case in the same way as the victims could if they were not deceased. She stated that the bill has a zero fiscal note. 2:16:50 PM MS. TOTH provided the sectional analysis. The bill consists of one section. On page 2, line 1, subparagraph (ii), the language "an adult" is deleted and "a" is inserted. It would then read: (ii) a child, parent, brother, sister, grandparent, or grandchild of the deceased; or 2:17:45 PM CHAIR REINBOLD turned to invited testimony. 2:18:05 PM TAYLOR WINSTON, Executive Director, Office of Victims' Rights, Legislative Affairs Agency, Anchorage, Alaska, stated she noticed the disparity in the treatment of children of victims of crimes. This became an issue in a case, which was later resolved. However, it highlighted the difficulty minor children of a crime victim can encounter because as minors, they are precluded from constitutional and statutory rights when their parent is the victim of an offense. The definition in statute does not list an age qualifier for the adult child, parent, brother, sister, grandparent, or grandchild of the victim of a crime. A minor spouse or child couldn't give a victim statement or receive restitution or other rights given to crime victims in the state. She referred to the definition of victim under AS 12.55.185 (19). Subparagraph (C) pertains to a victim of a crime who died. If that person had a sister and a minor child, the sister would be entitled to rights but not the minor child. This bill will make it equitable, she said. 2:20:20 PM SENATOR KIEHL pointed out a possible unintended consequence. He said the language in AS 12.55.185(19)(C) refers to "one of the following." He asked if a situation could arise in which a homicide victim has a very young minor child who could not give a meaningful victim impact statement or participate in parole hearings or other matters that a victim would be entitled to. MS. WINSTON responded that could be the situation for all victims. For example, it is possible an adult child or brother of a homicide victim could be incompetent and therefore not able to use the law and the protections in the same way others could. This bill will ensure that barriers are not erected because of someone's age. She pointed out that very small children often want to participate and most courts will allow them to participate. She noted that an adult, such as a guardian or guardian ad litem usually will represent the child. 2:23:18 PM SENATOR KIEHL suggested that an amendment might be necessary to clarify that a child is entitled to participate in matters as the child of a victim [identified in subparagraph (A)]. 2:23:47 PM CHAIR REINBOLD suggested that he could work with her office on any amendments. 2:23:55 PM SENATOR SHOWER asked whether AS 12.55.185(19)(C)(iii) would provide the safety net. MS. WINSTON said the language, "adult child" became a point of litigation in which a teenage child of a mother who was murdered was not being able to avail herself of her crime victim's rights due to her age. She stated that she argued in pleadings that the court had the discretion to use the language "any other person" in AS 12.55.185(19)(C)(iii). However, the court declined to do so. Currently, a grandchild of a murder victim would have more rights than the victim's minor child. She said that from a victim's right perspective, she found that to be offensive. 2:25:42 PM SENATOR HUGHES referred to page 1, line 12, to AS 12.55.185(19)(C), which allows sub-subparagraph (i), (ii), or (iii) to be used. She asked what would happen if a minor aged 17 was married to the dead victim. She asked if "one of the following" should be changed to "any one of the following." She referred to page 1, line 10, to AS 12.55.185(19(B)(ii), which uses the language "adult child." She asked if that language should also be changed to include a minor child. SENATOR HUGHES restated her question. MS. WINSTON agreed. She opined that it was not the intention of the law to limit an opportunity for a dead victim's close relatives listed in sub-subparagraph (ii) to attend a hearing or receive restitution to one person. She referred to line 12, AS 12.55.185(19)(C), and suggested it would be better to use "any one of the following" rather than "one of the following." She said that AS 12.55.185(19)(B) uses the language "one of the following,". However, if the homicide victim, as specified by subparagraph (A), was a minor, incompetent or incapacitated, subparagraph (B) relates to (A). She acknowledged that a situation could arise in which a minor parent becomes a victim of a crime. However, she offered her belief that in that situation the minor child would already be covered. She explained that AS 12.55.185(19(C) relates to homicide victims, and lists people who are considered as victims entitled to participate in hearings or receive compensation. AS 12.55.185(19)(B) pertains to situations in which the victim of a crime was a minor, incompetent, or incapacitated. Subparagraph (B) would allow a spouse, parent, adult child, guardian, or custodian of that victim of a crime to receive compensation as a victim or to participate in parole hearings or other matters. 2:30:23 PM SENATOR HUGHES referred to page 1, line 7 of SB 122. She said that subparagraph (B) pertains to subparagraph (A), the person against whom an offense has been perpetrated that is also a minor, incompetent, or incapacitated. She said the mentally disabled victim, who is alive, could also have a minor child who is affected. She suggested that sub-subparagraph (ii) should not read "adult child." MS. WINSTON said she understood her concern. She said that if the committee wanted to expand the definition of victims, it could do so. She explained that the difference between AS 12.55.185(19)(B) and AS 12.55.185(19)(C) is that the direct victim is dead in subparagraph (C). Therefore, it provides a list of people who can be recognized as victims. In subparagraph (B), the victim is not dead but may be under 18, mentally challenged, or in a coma. In that instance, it provides for a person who is related to come before the court to speak on behalf of the incompetent victim of a crime. She acknowledged that the list of people being identified in subparagraph (B) could be expanded by including minor children but it would considerably expand the definition. 2:32:48 PM SENATOR HUGHES characterized this as an important policy decision because the child of a homicide victim could come before the court to testify on how they are impacted. The parent will be gone forever. SENATOR HUGHES pointed out that the parent who was victimized but not killed may be disabled or in a coma. In that case, the child may be living with the disabled parent. She asked why that child would not be allowed to come before the court, too. MS. WINSTON responded that she is not saying that could not be done. One might ask if the parent, brother, sister, grandparent, or grandchild of the incapacitated victim should also have those same opportunities under subparagraph (B). She said she is all for as many people who are victimized to have opportunities to participate in the process but it will potentially expand the notification on all things and increase the fiscal note. 2:35:22 PM CHAIR REINBOLD reminded members that SB 122 only changes the language from "an adult child" to "a child" in sub-sub paragraph (C) on page 2, line 1. MS. WINSTON agreed. 2:35:47 PM SENATOR KIEHL interpreted subparagraph (B) to mean that the direct victim is not legally able to speak. In subparagraph (C) the direct victim cannot physically participate because the direct victim is deceased. He offered his view that people who could speak on their behalf should be similar. He said he was not inclined to open the list up to everyone. However, he said he thinks it makes sense to have an adult give the victim impact statement when the direct victim is disabled and unable to speak on their behalf. It makes great sense to expand sub-subparagraph (ii) to include a minor child. He hoped these suggestions would accomplish the intent of the bill, which is good. He said it makes sense to have one adult acting as the direct victim's spokesperson in parole hearings or other proceedings such as the modification of sentencing process. He said he did not want to dramatically increase the fiscal note. 2:37:45 PM MS. WINSTON said she was unsure of the changes to be made. SENATOR KIEHL stated that he would like to work on this language with the sponsor. 2:38:32 PM SENATOR MYERS related his understanding that subparagraph (B) would establish a guardianship for the victim of a crime who is still alive. While he understood Senator Hughes' concern that the direct victim is not the only victim, he was hesitant to expand the bill to multiple people without first considering all of the victim's rights in Alaska. If an incapacitated crime victim did not have an obvious guardian, such as a parent or spouse, the court would appoint one. He suggested that [subparagraph (B) should not be changed. 2:39:54 PM SENATOR HUGHES stated that the committee needs clarification whether this pertains to victims who can submit an impact statement, victims who will act as guardians, and victims who will be eligible for restitution. She said the committee has been discussing victims providing impact statements before the court. She asked if that person will be eligible for restitution or if this relates to assigning guardianship. MS. WINSTON said the change in SB 122 to sub-subparagraph (ii) was to allow a child of a homicide victim to have all the crime victim rights. Those rights do not pertain to guardianship. It would go beyond providing an impact statement. For example, it would include whether the 15-year-old child wants to be in the in the courtroom during the trial or is entitled to some type of restitution. It may pertain to some type of privacy right, such as a defense attorney seeking private records, such as counseling or school records. She stated that there are a whole host of victims' rights that a child of a homicide victim could not participate in or have access. She highlighted that the case she previously mentioned was that a child wanted to be in the courtroom to observe proceedings but was not allowed to do so since the dead victim's child was not an adult. 2:43:13 PM CHAIR REINBOLD stated that the goal of the bill was to allow a child to have rights. 2:44:09 PM CHAIR REINBOLD opened public testimony on SB 122. 2:44:26 PM KATIE BOTZ, representing self, Juneau, Alaska, stated her full support of SB 122. She asked members to be mindful that victims include children and minors should have the right to decide to attend or not attend court proceedings, especially if they have been victimized. She recommended that the bill not be opened up to everyone. 2:46:28 PM CHAIR REINBOLD closed public testimony on SB 122.