Legislature(2001 - 2002)
04/09/2002 01:34 PM TRA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 405-CRIMES ON OR AGAINST STATE VESSELS/PLANES REPRESENTATIVE KEVIN MEYER, sponsor of HB 405, gave the following summary of the legislation. HB 405 gives the state jurisdiction over our state owned watercraft including our watercraft that is outside of state waters. Recently a Superior Court judge dismissed the prosecution for a sexual assault that occurred on one of our Alaska state-owned ferries while it was in Canadian waters. Last year a young woman who was only 16 years old was sexually assaulted while she was on the Alaska ferry, Matanuska, en route from Seattle to Ketchikan. The ferry was in Canadian waters at the time of the assault. The district attorney in Ketchikan presented the case to the grand jury there, and the grand jury returned an indictment of one count of sexual assault in the first degree, one count of sexual assault in the second degree, and four counts of misdemeanor assault. Unfortunately, Mr. Chairman, the court found that there was no statutory authority for the State of Alaska to prosecute the crime even though the victim was an Alaskan on an Alaska-owned state ferry. Under federal maritime law, the United States Government has jurisdiction over crimes committed on United States vessels in Canadian waters but the dismissal by the state court is a concern because the client is unlikely to be prosecuted by the federal government and certainly is of very little interest to the Canadian government. The federal government does not generally prosecute offenses such as sexual assault and the Canadian government has little interest in pursuing this since it was a state-owned ferry and it was an Alaska victim that it occurred to on the Alaska ferry. I believe, Mr. Chairman, that it's prudent that we pass a law that specifically will give the State of Alaska the power to prosecute cases like this one and to protect and defend our passengers on our state-owned ferry system. Unfortunately this is not an isolated incident and it is not going to go away. Just as recently as December, four months ago, an intoxicated passenger attacked two crewmembers on one of our ferries with a vodka bottle and caused some minor injuries. The passenger - and charges were filed against this passenger - but the passenger has filed a motion to dismiss the case based upon the sexual assault that was dismissed last summer. Again, this occurred in Canadian waters en route between Prince Rupert and Ketchikan. This bill is a very simple bill. It's a simple solution to a very serious problem. What we have here is a loophole in our law. The bottom line is that if the Canadians won't and don't want to prosecute criminal activity that occurs on state-owned vessels in Canadian waters and the federal government doesn't have the time or doesn't want to prosecute, then the State of Alaska should at least have the option to do so if we so desire. That, Mr. Chairman, is the just of the bill. SENATOR WARD asked the name of the judge in Ketchikan who made the ruling. REPRESENTATIVE MEYER told members that this case was brought to his attention by the Department of Law. He deferred to Ms. Carpeneti for details of the case. MS. ANNE CARPENETI, Assistant Attorney General, informed members that Judge Weeks made the decision but said there is reason for his decision. She noted that although the Department of Law is appealing the decision, the most prudent approach is to pass a statute, which Judge Weeks suggested in his decision. SENATOR WARD asked if both the victim and the alleged offender are American and Alaska citizens. MS. CARPENETI said the victim is an American who lives in the Anchorage area. Ms. Carpeneti said she believes she is an Alaska resident. The defendant is an American citizen and she was not sure what state he is a resident of. SENATOR WARD asked what charge the defendant was extradited on. MS. CARPENETI said she did not know as he was extradited on charges brought in another state. She offered to get Senator Ward more information on the extradition charge. She added that the defendant was extradited in Alaska on this charge. SENATOR WARD stated, "He was indicted on this charge, but yet the judge ruled that he couldn't be indicted on this charge because there was no law for it?" MS. CARPENETI explained the ruling stated that crimes and jurisdiction over crimes in Alaska are dictated by statute; Alaska does not have common law crimes anymore. Alaska's jurisdictional statute allows the state to prosecute crimes committed in its territory or committed outside of the territory when the effect is consummated in our state. This particular offense was committed outside of Alaska's territory and the harm occurred outside of its territory. For that reason, the judge ruled that the state does not have jurisdiction. SENATOR WARD asked if a sexual assault occurred in a state-owned military airplane while flying over Canada's airspace and the victim and offender were American citizens, whether Alaska would have jurisdiction. MS. CARPENETI said this bill does not address that issue and that state airplanes generally operate in state airspace. SENATOR WARD said he was referring to a state-owned military airplane that legally travels outside of state airspace. MS. CARPENETI said it would depend on the circumstances. She remarked, "I'm sure they would be breaking somebody's law. They would probably be breaking federal law and they would probably be breaking the law if it's a sexual assault of the territory in which it happened - in the airspace where it happened." SENATOR WARD asked, "And it's this judge's opinion that the law wasn't broken because there was no law on it?" MS. CARPENETI replied that Judge Weeks did not express an opinion on the particular offense. His decision was not based on his opinion that a law hadn't been broken but instead that the state needs a statute on which to base the state's authority to prosecute the case because it occurred outside of Alaska territory. SENATOR WARD asked, "So if, in fact, this hypothetical airplane I just described was flying outside of Alaska airspace into Canadian airspace and this sexual assault had occurred, would there not be any law to bring charges in that situation?" MS. CARPENETI asked Senator Ward if he was referring to State of Alaska law or Canadian law. SENATOR WARD said Alaska law. MS. CARPENETI said that first of all, federal law would probably apply. SENATOR WARD asked if federal law would apply to the case on the ferry. MS. CARPENETI said yes, the federal government has jurisdiction on United States flag vessels but, generally, the federal government does not pursue cases like this on ferries. It tends to pursue cases on airplanes. REPRESENTATIVE MEYER commented that it seems when something happens on an airplane, the federal government is right there to prosecute. However, since the ferry system is state-owned, the federal government does not seem to have the same level of interest. CHAIRMAN COWDERY asked about cruise ships or privately owned ferry systems. MS. CARPENETI said the jurisdictional theory that this bill is based on is that a state-owned vessel, "has enough connections - is kind of like a piece of Alaska traveling through international waters." She assumed a vessel owned by another private entity traveling in Canadian waters would turn into the next port in Canada and report the crime there. It is much more difficult for an Alaska ferry to go off course and off schedule and travel to a port that may not be able to accommodate the vessel. SENATOR TAYLOR said a different Ketchikan Superior Court judge found jurisdiction in a previous case and convicted someone traveling on the Alaska ferry in Canadian waters. MS. CARPENETI said she believes Senator Taylor is correct. SENATOR TAYLOR said that is why this decision was considered to be unique or aberrant to the extent that probably no one has aggressively raised the defense before. TAPE 02-14, SIDE B SENATOR TAYLOR asked why the legislation is limited to ferries. He questioned whether federal jurisdiction extends to foreign flag vessels bringing tourists to Juneau from Vancouver, B.C. MS. CARPENETI said she believes the state could prosecute a crime against a state law on such a vessel if the crime occurred while the vessel was in Alaska territory. The Canadian government would have jurisdiction if the vessel was in Canadian waters. She added the flag of the ship would have jurisdiction no matter where the ship is. The United States government has prosecuted crimes that occurred on U.S. flagships traveling on rivers in Africa. She assumed the Washington authorities could prosecute a crime that happened between Bellingham and Canada. SENATOR TAYLOR said he gets confused about the jurisdictional questions because it is almost frightening to think about an incident occurring to a tourist on a boat registered in the Seychelles. He noted that Dixon Entrance is a large gray zone as far as whether Canada or the United States has jurisdiction. He stated: You could very easily be dealing with two different foreign nationals involved. You might have a crewmember that's perpetrated a crime and the crew member is from Italy maybe, and the victim is from Mexico. I think that all becomes very confusing. I think at least as far as our state-owned vessels we ought to have some continuity and I'm assuming that your department supports this legislation. MS. CARPENETI said the department does support the legislation. SENATOR TAYLOR asked if there is any reason to not consider aircraft in the legislation. He said the Departments of Public Safety and Fish and Game have an aircraft fleet of somewhere between 46 and 52 and that any aircraft flying three miles offshore is in international airspace. MS. CARPENETI replied that most state aircraft operate in the state but she can understand the desire to include state-owned aircraft traveling outside the state. The problem, in terms of vessels, for the Department of Law has not necessarily been with crimes that have occurred in international waters because Alaska has a statute that says where the federal government can exercise jurisdiction, the state can also. That has allowed the state to prosecute under Alaska's theft statutes. The issues generally deal with due process - whether it is fair for the state to exercise jurisdiction under the circumstances with the connection between Alaska and the offense. She added that a state-owned aircraft would probably be similar to a state-owned ferry. SENATOR WARD asked, regarding the previous conviction that Senator Taylor referred to, if that person would be able to file for an appeal to get out of prison if this bill passes. MS. CARPENETI said she does not believe so because this bill will give the state jurisdiction to prosecute. SENATOR WARD asked if passage of this bill could set up an argument that the person convicted of rape was not convicted legally because the state did not have jurisdiction. MS. CARPENETI said she does not believe so because she believes this legislation makes explicit a position taken in the lower court. SENATOR TAYLOR noted the case is on appeal and a decision will be made eventually by Alaska's Supreme Court as to whether or not Judge Weeks was correct in denying jurisdiction to our state in those waters. If the Supreme Court decides the state had jurisdiction all along and Judge Weeks was wrong, then the man convicted in Ketchikan was justly convicted and there would be no problem. However, if the Supreme Court says Judge Weeks was correct, the state did not have jurisdiction, the convicted man would have some right to appeal that conviction. Enacting this law, confirming or reasserting the state's jurisdiction, will only be effective from that date forward anyway but it would not play upon the earlier case because it is not a negative - it doesn't say the state did not have jurisdiction, it further asserts the state did have jurisdiction. He commented that he does not want to see the case on appeal dropped if this law is enacted. MS. CARPENETI stated the Department of Law is pursuing the appeal. There being no further testimony or questions, SENATOR WARD moved HB 405 from committee with individual recommendations. CHAIRMAN COWDERY announced that without objection, the motion carried. With no further business to come before the committee, he adjourned the meeting at 2:30 p.m.