Legislature(1993 - 1994)
03/14/1994 09:07 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.