Legislature(2001 - 2002)

04/09/2002 01:34 PM TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                           

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