Legislature(1993 - 1994)

03/14/1994 09:07 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 ED MCNALLY, Deputy Attorney General, Department of Law (DOL) thanks           
 the chairman and members of the committee for their attention to              
 the governor's crime package legislation.  Mr. McNally states the             
 five bills before the committee (SB 349, SB 350, SB 351, SB 352,              
 and SB 353) will help to protect Alaska's women and children, and             
 will also help prevent some crime from occurring in the first                 
 place.  All of the bills are inexpensive; several will actually               
 save money and, at the same time, put more law enforcement                    
 personnel on the street without any budget increases.                         
                                                                               
 MR. MCNALLY states the governor's crime package has been endorsed             
 by nearly every major victim's rights group, women's advocacy                 
 group, and law enforcement group in Alaska.  The committee's desire           
 to hear the bills as a package speaks well of the consensus and the           
 recognition that more must be done in responding to violence                  
 against Alaska's women and children.                                          
                                                                               
 MR. MCNALLY says some of the elements in the governor's crime                 
 package have to do with budgetary concerns, while some provisions             
 address other concerns, such as "three strikes, you're out",                  
 juvenile waivers, and conspiracy.  These bills are designed to                
 combat the crimes that most threaten Alaska's women and children:             
 domestic violence, stalking, rape, and child abuse.                           
                                                                               
 MR. MCNALLY states that, at the core of this initiative, are six              
 new laws to level the playing field.  The governor filed six bills            
 in the house, but only five in the senate, because Senator Donley             
 has already filed a bill, SB 24, which would extend probation.                
                                                                               
 Four bills are designed particularly for protecting women and                 
 children, those are SB 350, SB 351, SB 352, and SB 24.  The other             
 two bills in this package, SB 349 and SB 353 would serve to provide           
 new protections for all victims of crime.  These last two bills             
 would put more law enforcement personnel on the street and would              
 give prosecutors and defendants an equal number of jury challenges,           
 as recommended in the American Bar Association's National                     
 Standards.                                                                    
                                                                               
 Number 103                                                                    
                                                                               
 MR. MCNALLY stresses that these bills have very few moving parts.             
 There is not an extraordinary amount of language in these bills               
 which would open them up for amendment, the way the complex                   
 legislation that has been previously worked on involves.  Mr.                 
 Mcnally would contrast the governor's crime legislation package               
 with President Clinton's crime legislation package, which is the              
 size of a telephone book.  The legislation before the committee is            
 an Alaska package; it was designed by Alaska's police, Alaska's               
 prosecutors, and Alaska's women's advocacy groups, to meet an                 
 Alaskan problem.                                                              
                                                                               
 MR. MCNALLY says that brings him to the second point he would like            
 to make today: the problem of rape, domestic violence, and child              
 abuse is enormous.  Alaska does not have the number one murder                
 problem in the United States.  We do not have the number one drug             
 abuse problem.  On a per capita basis, Alaska has one of the                  
 highest rates of rape, domestic violence, child abuse, and sexual             
 abuse of children in the nation.  Not only are these cases among              
 the most difficult and sensitive to prosecute, they are also among            
 the most devastating in terms of the outrage, the grief, and the              
 emotional trauma inflicted on victims, their families, and the                
 entire community.  The offenders in these cases are clearly among             
 those most deserving of aggressive prosecution.  They are cowards.            
 They prey on our most vulnerable citizens: children, the elderly,             
 and women.                                                                    
                                                                               
 The problem of domestic and sexual violence in Alaska cuts across             
 all boundaries of race, culture, status, educational background,              
 and other demographic factors.  It is acute in both urban and rural           
 areas.  Mr. McNally shows the committee several statistic charts.             
 The charts show the rising number of reported cases in the early              
 1990's.                                                                       
                                                                               
 Number 156                                                                    
                                                                               
 SENATOR TAYLOR asks Mr. McNally how many cases, of those that were            
 reported, were found to have no substance.  The senator had heard             
 that DFYS (Division of Family & Youth Services) reported 67% had no           
 substance and asks Mr. McNally if that percentage is accurate.                
                                                                               
 Number 165                                                                    
                                                                               
 MR. MCNALLY responds he is not familiar with that number and is not           
 in a position to address it.  However, he is familiar with the                
 cases that are actually brought to prosecution by law enforcement             
 agencies that state they have reason to believe they have proof               
 beyond a reasonable doubt that the abuse actually occurred.                   
                                                                               
 Number 170                                                                    
                                                                               
 SENATOR TAYLOR would like to see the number of actual prosecutions.           
 The senator says there is probably a corresponding rise in those              
 numbers too, but he has suspicions about DFYS's numbers.                      
                                                                               
 MR. MCNALLY says he appreciates Senator Taylor's concern, and he is           
 not familiar with the 67% figure from DFYS, but Mr. McNally states            
 he is not familiar with any law enforcement professional, court               
 system professional, or advocacy professional who is not under the            
 impression that Alaska's problem is significantly greater than that           
 of other similarly sized populations in the country.                          
                                                                               
 SENATOR TAYLOR says he agrees with that, and believes it is due to            
 the high alcohol abuse rate.                                                  
                                                                               
 MR. MCNALLY shows a chart indicating the number of rapes reported             
 to the Anchorage Police Department.  Certainly, 150 or so reported            
 rapes a year is highly unacceptable to any community.  In 1991 and            
 1992, Anchorage saw about 200 to 250 reported rapes a year, but in            
 1993 that figure jumped to over 400 reported rapes.  Mr. McNally              
 states, to give the committee an idea of how the prosecution in the           
 state has voted with its' feet, that the number of assistant                  
 district attorneys in Anchorage has dropped from 26 to 22 in the              
 past few years.  Despite the loss in personnel, the number of                 
 personnel assigned full-time to rape, domestic violence, and child            
 abuse cases has gone from zero to four in that same time period.              
 Obviously, that means less prosecutorial resources are going into             
 prosecuting any number of other categories of crime, primarily                
 business crime, shoplifting, bad checks, burglaries, and other                
 crimes against property.  That gives you an indication of how                 
 seriously these problems are viewed by those of us who are obliged            
 to respond to them.                                                           
                                                                               
 Number 208                                                                    
                                                                               
 MR. MCNALLY states another indication of the enormity of the                  
 problem can be gleaned from an editorial which appeared in the                
 Anchorage Daily News (Mr. McNally passes a copy of the editorial              
 out to each committee member).  Mr. McNally says one of the most              
 acute problems is the first item underlined in the editorial:  that           
 84% of victims do not file a police report.  That is a national               
 figure, and is another part of the problem before the state.  Part            
 of the purpose of this legislation is to encourage women to come              
 forward and report these crimes by making the court room a safe               
 place for them; a place where they will be respected, and where               
 their dignity will be respected.                                              
                                                                               
 Everyone is talking about violent crime, but in Alaska, we are                
 talking about crime against women and children.  People of our                
 communities are angry and disgusted by these crimes and by the                
 archaic and unacceptable attitudes, sometimes in the system itself.           
                                                                               
 MR. MCNALLY says that concludes his general testimony on the                  
 governor's crime package, and he would now be happy to discuss                
 individual pieces of legislation.                                             
 CHAIRMAN LEMAN brings up SB 351 (CHARACTER EVIDENCE IN CRIMINAL               
 TRIALS) as the next order of business before the State Affairs                
 Committee.                                                                    
                                                                               
 Number 421                                                                    
                                                                               
 MR. MCNALLY states that of the six bills in the governor's crime              
 package, SB 351 is substantially the most important, from the point           
 of view of the administration and law enforcement.  The purpose of            
 SB 351 is to prevent rape victims from being put on trial by the              
 defense.  This affects three different areas of Court Rule 404.               
                                                                               
 MR. MCNALLY says some members may recall that in 1988 the Alaska              
 State Legislature acted to try to correct the problem involved with           
 rule 404 as applied to repeat child molesters.  In 1991, the Alaska           
 Legislature endeavored mightily to recraft rule 404 to communicate            
 to Alaska's judges that rule 404 was to be a rule of inclusion:               
 where there were repeat offenders, the playing field should be                
 balanced.  Despite that, judges continue to interpret rule 404 as             
 a rule of exclusion.                                                          
                                                                               
 SB 351 is a fairly determined effort to further fine-tune rule 404,           
 so that the intent of the Alaska State Legislature in 1991 is                 
 unambiguous to the Court System.                                              
                                                                               
 MR. MCNALLY states there are three particular problem areas, even             
 though rule 404 is only a few paragraphs long.  First, Court Rule             
 404 only addresses people with prior histories of criminal                    
 behavior; those with prior history of rapes, violence, and child              
 sexual abuse.  None of these changes will affect the proverbial               
 first time offender.  The problem is this: the Alaska State                   
 Legislature passed a rape shield law to try to prevent victims of             
 rape from being put on trial by the defense.  We are only too aware           
 of victims being put on trial.  Several national examples vivid in            
 everyone's minds are the Menendes brothers in California who put              
 their dead parents on trial.  This happens in a very large number             
 of rape cases.  Thanks to the advances in forensic evidence, it is            
 increasingly more difficult for a rapist to claim the rape did not            
 occur.  As a result of that progress in science, we are seeing an             
 increase of a defense of consent.  In cases where there is a repeat           
 rapist who is claiming that the person they had sexual relations              
 with consented to sex tries to put the victim on trial, the state,            
 on behalf of the victim, would then be able to stand up for that              
 victim by presenting evidence to the court of the prior sexual                
 assault history of the defendant.                                             
                                                                               
 MR. MCNALLY says the most dramatic example of that is the case of             
 Leo Hoffman, which you have before you in the bill file.  Leo                 
 Hoffman was twice convicted of rape in California.  Mr. Hoffman               
 moved to Alaska after serving his time in California and promptly             
 began attacking women again.  Many of those women did not come                
 forward and report the attacks to law enforcement personnel.  There           
 was one dramatic case of a woman who did.  Mr. McNally relates her            
 case to the committee.                                                        
                                                                               
 Number 473                                                                    
                                                                               
 MR. MCNALLY states the woman immediately reported the incident to             
 law enforcement.  Immediate reporting of rape is considered to be             
 relatively high in credibility.  There are sometimes problems when            
 a victim takes months or years to come forward.  It was immediately           
 clear to law enforcement personnel that Leo Hoffman had crafted a             
 consent defense.  Under current Alaska law, the jury would never              
 learn the truth about Mr. Hoffman's prior rapes.  Instead, he                 
 successfully hid behind the loop-hole in Alaska law that keeps                
 prior rape out of a trial, even when the defendant chooses to use             
 the claim of consent as defense and put the victim on trial.                  
 Ultimately, Mr. Hoffman was convicted of only one charge: the                 
 charge he had confessed to, possession of the cocaine he was                  
 accused of injecting into the victim.  Incredibly, even after his             
 conviction of a class C felony, the judge allowed Leo Hoffman out             
 on bail pending his appeal.  Last year in Anchorage, while out on             
 bail, Leo Hoffman was again arrested and charged with assaulting              
 not one, but two more innocent Alaskan women.  To protect Alaska's            
 women, this loop-hole, which serves only to protect repeat rapists,           
 ought to be closed.                                                           
                                                                               
 Number 492                                                                    
                                                                               
 MR. MCNALLY states that the second change relates to rules of                 
 evidence allowing the state to show instances in which the                    
 defendant has been violent, when the defense tries to put a murder            
 victim on trial by claiming the victim was violent. We want to                
 extend that right to live victims.  There is no reason to only                
 allow this rule to be applied to cases where the defendant actually           
 succeeded in killing the victim.  This second change means that in            
 a case of violence, often domestic violence, where the abuser or              
 attacker tries to put the blame on the victim, the state can come             
 back and stand up for the victim by introducing evidence of the               
 defendants prior violent conduct.  This simply makes rule 404                 
 consistent with the way we treat cases where people are actually              
 killed by their attacker.                                                     
                                                                               
 Number 503                                                                    
                                                                               
 MR. MCNALLY states the last change would help protect Alaska's                
 children from serial predators.  This is the change that the senate           
 attempted in 1988.  Unfortunately, some confusing language in rule            
 404, as it applies to child abusers, has been misinterpreted by the           
 superior court judges in Anchorage.  It has been interpreted                  
 correctly in some courts in Southeast Alaska and in Fairbanks.                
 Nevertheless, this phrase, "common scheme or plan" has been                   
 interpreted by many courts in South-Central Alaska as meaning there           
 has to be an actual, specific common scheme or plan.                          
                                                                               
 MR. MCNALLY says the most dramatic case of this, was the case known           
 as Satch Carlson 2.  A Bartlett Highschool teacher was accused of             
 attempting to have sexual relations with not one, but two of the              
 students entrusted to his care.  Quite properly, the Alaska State             
 Legislature had made that conduct illegal.  His defense was that it           
 was not a common scheme or plan.  He had one plan to have sex with            
 this girl, and a different plan to have sex with that one.  The               
 judge, buying that argument, allowed the teacher to have two                  
 separate trials.  So instead of the two girls, coming before the              
 jury and telling what had happened, they had to have separate                 
 trials.  Each jury heard of only one case, and the man was                    
 acquitted and walked.  Charges were dismissed in the second case.             
 This bill would close that loop-hole.  Under SB 351, both girls               
 would go before the same jury, and the jury would make a decision             
 based on what had occurred in that case.                                      
                                                                               
 MR. MCNALLY states those are the three changes in SB 351 to close             
 three loopholes in Court Rule 404.  SB 351 is probably the most               
 important piece of legislation in the governor's package of crime             
 legislation.                                                                  
 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and           
 Sexual Assault says she will testify on several bills at once.  She           
 thinks Mr. McNally did an excellent job of presenting the                     
 governor's legislation, and states she cannot add a whole lot to              
 his testimony, but wants to emphasize the impact this legislation             
 will have for victims.  Ms. Andreen states she has worked in this             
 field in Alaska for twelve years and estimates that between 75%-90%           
 of all these types of cases never get reported to the authorities.            
 There are a number of reasons for that, but one of the primary                
 reasons is that the system, at least from the victim's perspective,           
 does not work, does not help her, and will not protect her.  Too              
 often, it is her word against the offender's word, and frequently             
 it is the offender who is believed.                                           
                                                                               
 MS. ANDREEN states these bills will go a long way in helping to               
 tighten that up.  Once the process starts, victims are going to               
 know there will be justice.  Ms. Andreen encourages support for               
 these bills.                                                                  
                                                                               
 Number 552                                                                    
                                                                               
 CHAIRMAN LEMAN states a case comes to his mind in which two men               
 were convicted of rape, but found not guilty of attempted murder.             
 He says the victim was a prostitute, and unfortunately the status             
 of the victim places doubt in the jurors minds as to the validity             
 of the victim's testimony.                                                    
                                                                               
 Number 542                                                                    
                                                                               
 MS. ANDREEN states these types of cases happen on a daily basis.              
 As she was listening to testimony today, many cases came to her               
 mind of many cases which were not successfully prosecuted because             
 of the fact that too often it ends up being the victim who is put             
 on trial: why was she in that position, look at her past, look at             
 her background.  Or in domestic violence case and the victim and              
 the offender are in a marital or dating relationship puts some                
 question in the jurors minds as to why she was staying in the                 
 relationship.  Anything that can be done to tighten that up will go           
 a long way toward helping victims.  With these types of cases, the            
 earlier the intervention, the stronger the message will be from               
 society that this abuse is not o.k.  In the long term, we will                
 hopefully see a lessening of these types of crimes, but not until             
 there is a strong system.                                                     
                                                                               
 Number 533                                                                    
                                                                               
 CHAIRMAN LEMAN asks Ms. Andreen if she knows of any cases where a             
 man is attacked by a woman.  The chairman states the bills are                
 designed to work both ways.                                                   
                                                                               
 MS. ANDREEN states it is estimated that about 4% of adult domestic            
 violence victims are men.  In her years in the field, she has had             
 contact with about a half-dozen men who said they were victims of             
 domestic violence.  In the cases she is familiar with, the men were           
 not victims, but were the primary perpetrator of domestic violence.           
                                                                               
 Number 519                                                                    
                                                                               
 MR. MCNALLY says he would like to comment on the case just                    
 mentioned by the chairman, which was Jackson-Osborne.  What is so             
 extraordinary about that case really stresses the chairman's and              
 Ms. Andreen's point about the status of the victim playing a part             
 in the sentencing of the defendant.  The victim was kidnapped,                
 raped several different ways by two different men, beaten,                    
 stripped, thrown in the snow, clubbed about the head, shot in the             
 back of the head, buried in the snow, and left for dead.  She                 
 actually heard one man say to the other, "Is she dead?"  The other            
 said, "If she's not already, she will be soon."  Incredibly, she              
 got up out of the snow, brushed herself off, prostitutes obviously            
 have a tough go in life, was picked up hitch-hiking, brought back             
 to her home, not to the hospital, and did not report the crime.               
 The victim thought, "I'm a hooker, nobody cares, people are allowed           
 to do anything they want to me."                                              
                                                                               
 A couple of days later, the people who had given her a ride home              
 told the police, and the police, to their credit, searched for her,           
 found her, and got her to report the crime.  But this is how the              
 women of our community and our state have given up on the system's            
 ability to protect them, that they don't think anybody would care.            
                                                                               
 This was a wonderfully prosecuted crime.  Ironically the police and           
 the individual prosecutor are really disappointed that the jury did           
 not convict on attempted murder, and really disappointed that the             
 men were only sentenced to twenty-some years.  Mr. McNally thinks,            
 "My God, but for the cops, these guys never would have seen the               
 inside of a courtroom."  Laws like the bills before the committee             
 today will hopefully change the thoughts of women like this                   
 particular victim, who will have more faith.                                  
 SENATOR TAYLOR asks if the Public Defender's Office has been                  
 contacted about these bills.                                                  
                                                                               
 MR. MCNALLY responds John Salemi in the Public Defenders Office               
 opposes SB 351.  Mr. McNally provides the committee with copies of            
 Mr. Salemi's comments to the press regarding SB 351.                          
 CHAIRMAN LEMAN brings up SB 351 (CHARACTER EVIDENCE IN CRIMINAL               
 TRIALS) for consideration.                                                    
                                                                               
 SENATOR MILLER makes a motion to discharge SB 351 from the Senate             
 State Affairs Committee with individual recommendations.                      
                                                                               
 CHAIRMAN LEMAN, hearing no objection, orders SB 351 released from             
 committee with individual recommendations.                                    

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