Legislature(2021 - 2022)ADAMS 519
05/12/2022 09:00 AM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 5 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
May 12, 2022
9:38 a.m.
9:38:05 AM
CALL TO ORDER
Co-Chair Merrick called the House Finance Committee meeting
to order at 9:38 a.m.
MEMBERS PRESENT
Representative Neal Foster, Co-Chair
Representative Kelly Merrick, Co-Chair
Representative Dan Ortiz, Vice-Chair
Representative Ben Carpenter
Representative DeLena Johnson
Representative Andy Josephson
Representative Bart LeBon
Representative Sara Rasmussen
Representative Steve Thompson
Representative Adam Wool
MEMBERS ABSENT
Representative Bryce Edgmon
ALSO PRESENT
Representative Geran Tarr, Sponsor; John Skidmore, Deputy
Attorney General, Department of Law; Brenda Stanfill,
Executive Director, Alaska Network on Domestic Violence and
Sexual Assault; Representative Matt Claman; Representative
Kevin McCabe; Representative Mike Cronk; Representative
Laddie Shaw; Representative David Nelson.
SUMMARY
HB 5 SEXUAL ASSAULT; DEF. OF "CONSENT"
HB 5 was HEARD and HELD in committee for further
consideration.
Co-Chair Merrick reviewed the agenda for the meeting. She
recognized that Representative Matt Claman and
Representative Geran Tarr were in attendance.
HOUSE BILL NO. 5
"An Act relating to sexual abuse of a minor; relating
to sexual assault; relating to the code of military
justice; relating to consent; relating to the testing
of sexual assault examination kits; and providing for
an effective date."
9:38:40 AM
Co-Chair Merrick reported that the committee heard a brief
overview of HB 5 on May 10, 2022. She MOVED to RECIND
action on the adoption of the work draft for CSHB 5 (FIN)
32-LS0065\U (Radford, 5/10/22).
Representative Carpenter OBJECTED and asked why the work
draft was being rescinded.
Co-Chair Merrick explained the reason for the motion. She
voiced that the Committee Substitute (CS) work draft was
not the referred version.
Representative Carpenter WITHDREW the OBJECTION.
There being NO OBJECTION, it was so ordered.
Co-Chair Merrick indicated the House Judiciary Committee
(HJUD) Committee Substitute, version F, was before the
committee.
9:39:42 AM
REPRESENTATIVE GERAN TARR, SPONSOR, pointed to the handout
titled HB 5 Versions (copy on file). She noted that the
original bill contained provisions regarding rape kits, the
definition of consent, sexual abuse of a minor, and rape by
fraud. She indicated that there were modifications made to
the bill when it reported out of the House State Affairs
Committee (HSTA), but the four provisions remained in the
bill. She furthered that during the time HB 5 was in the
Judiciary Committee, the bill was altered and contained
only two of the original provisions, rape kits and the
definition of consent. The Chairman of the Judiciary
Committee wanted to remove the sexual abuse of a minor
provisions due to the late date of the legislative session
and the long length of time the bill had remained in HJUD;
therefore, she had agreed. She had wanted to reinsert the
rape by fraud provisions that were included in the CS work
draft version that was rescinded. She related that she had
worked on the bill and there had been 17 previous hearings
with much deliberation. She had worked with Legislative
Legal Services and the Department of Law (DOL) and studied
what had been done and how things were defined in 12 other
states. They attempted to define the scope of the rape by
fraud definition very narrowly. The definition had been
affirmed by a law professors prior testimony in HSTA, who
was involved in drafting the model penal code. She
delineated that the two elements that were necessary in the
definition of rape by fraud were: impersonating another
person and the rapist was known to the victim to obtain
consent. She relayed that the Chair of the Judiciary
Committee wanted to draft HB 5 aligned with the model penal
code. She noted that the model penal code had been under
revision for a number of years, and she had been following
changes during the four years she had been working on the
bill in conjunction with DOL. She wondered if members had
any questions regarding what was in the HJUD version and
the CS that had been rescinded.
9:43:22 AM
Co-Chair Merrick clarified that the finance version was a
request by the bill sponsor and not by the House Finance
Committee.
Representative Wool was trying to understand the process.
He was confused and asked for clarification. He did not
understand why the committee was exclusively talking about
the Judiciary version versus the CS work draft version when
it was not before the committee. He wondered if it was the
sponsors desire to reintroduce the CS work draft version.
Representative Tarr responded that she spoke of the rape by
fraud element when she introduced the bill and wanted to
clarify that it was not included in the HJUD version.
9:45:03 AM
Representative Wool thought that the version of the bill
that had been rescinded was a moot point.
Co-Chair Merrick restated that the version under discussion
was the HJUD version. She stated that she wanted
Representative Tarr to present the Judiciary Committee
version and the House Finance Committee could modify it as
it desired.
Representative Carpenter wanted to know what bill the
sponsor wanted. He wondered what version the sponsor
preferred.
9:46:33 AM
Representative Tarr apologized about the confusion around
the different versions. She felt urgency because the
session was 6 days away from ending. She noted that there
was a companion bill in the Senate, SB 187 that included an
updated consent definition. She was attempting to match the
language with the Senate version due to the short time left
in the session.
9:48:11 AM
AT EASE
9:48:20 AM
RECONVENED
Representative Tarr pointed to the current statutory
definition of consent. She explained that the current
definition was insufficient and problematic and included
elements of the use of force, and did not capture the
trauma response of fight, flight, or freeze and was over 40
years old. She declared that the nonfunctional "broken
statute routinely denied justice to victims. She offered
that the group Standing Together Against Rape requested the
updated definition. She began working on the bill in 2019
and the specific goal was to remove the element of threat
or use of force or coercion from the consent definition.
She pointed to Section 1, of the bill and remarked that
once the use of force was removed from the definition it
was placed as a factor in the crime. The new language in
Section 1 read, by the use of force or the express or
implied threat of force against any person. It placed the
element of behavior into the crime of sexual assault in the
first degree. She discussed Section 2 referring to the use
of force language that was added and referred to the crime
of sexual assault in the second degree, regarding sexual
contact. She read the following language in Section 2,
under circumstances not proscribed under AS 11.41.410, the
offender engages in sexual penetration with another person
without consent of that person. She detailed that the
sexual penetration crimes not captured under sexual assault
1 were covered under Section 2 describing the crime of
sexual assault 2.
9:50:46 AM
AT EASE
9:53:49 AM
RECONVENED
Co-Chair Merrick indicated the committee would stand at
recess until 10:15 a.m.
9:53:58 AM
AT EASE
10:19:27 AM
RECONVENED
Co-Chair Merrick recognized Co-Chair Foster, Representative
McCabe, and Representative Cronk had joined the meeting.
10:19:54 AM
Representative Tarr appreciated the flexibility of giving
her time to gather documents. She reviewed the sectional
analysis for version F:
Section 1:
AS 11.41.410. Sexual assault in the first degree.
Establishes sexual assault in the first degree. Amends
subsection (a)(l) to make sexual assault in the first
degree encompass sexual penetration without consent by
the use of force/implied use of force against a
person.
Section 2:
AS 11.41.420. Sexual assault in the second degree.
Establishes sexual assault in the second degree.
Amends subsection (a)(l) to make sexual assault in the
second degree encompass sexual contact without consent
by the use of force/implied use of force against a
person. Amends subsection
(a)(S) to make sexual assault in the second degree
encompass sexual penetration without consent under
circumstances not proscribed in sec. 1.
Section 3:
AS 11.41.425. Sexual assault in the third degree.
Establishes sexual assault in the third degree. Amends
subsection (a)(7) to make sexual assault in the third
degree encompass sexual contact without consent,
excluding an offender knowingly causing a person to
come into contact with semen. This change was
recommended in Senate Judiciary to reflect changes as
a result of HB 14 in the 31st Legislature.
Representative Tarr reviewed Section 3. She pointed to the
language excluding an offender knowingly causing a person
to come into contact with semen. She referred to the
Schneider case that discovered deficiencies in statute,
which was why the language was included. She recalled that
in the case, the perpetrator masturbated on the victim, and
it was unable to be classified as a crime. However, there
were other circumstance where the same thing might happen
and did not include the element of force. She exemplified,
the situation in a correctional facility where an inmate
threw bodily fluids including semen at a guard. She
expounded that the language was included because of the
Schneider case and the distinction between knowingly
causing someone to come into contact with semen with the
use of force and defining that in a sexual assault context
versus knowingly causing the contact with semen in a non-
force circumstance.
10:23:29 AM
Representative Wool clarified that the correctional
facility incident would not be considered a sexual assault
but would be considered harassment. Representative Tarr
answered in the affirmative.
Co-Chair Merrick recognized Representative Thompson and
Representative Ken McCarty in the room.
Representative Tarr continued with the sectional analysis.
She reviewed Section 4:
Section 4:
AS 11.41.445. General provisions.
Adds a new subsection (c) that establishes: an
expression of lack of consent means there is no
consent; absence of verbal or physical resistance does
not establish consent; consent may be express or
inferred; consent may be revoked or withdrawn at any
time; a clear verbal refusal establishes a revocation
of prior consent; lack of consent may be overridden by
subsequent consent prior to the conduct at issue; a
person who is incapacitated as a result of an act of
the defendant cannot consent.
Representative Tarr noted that Section 4 provided more
clarity around the elements of consent. She pointed to the
reversable concept in the third element of Section 4 and
concluded that via discussions with DOL it was redundant.
She continued to Section 5:
Section 5:
AS 11.41.470. Definitions.
Adds a definition of "consent" to mean "a freely
given, reversible agreement specific to the conduct at
issue." This section also defines "freely given" to
mean "agreement to cooperate in the act was positively
expressed by word or action.
Representative Tarr expounded that the modernized version
takes the definition of consent from a no means no
paradigm to a yes means yes paradigm and represented
affirmative consent. The goal of updating the current
definition was to replace it with an affirmative consent
definition. She emphasized that she had no intention of
criminalizing normal consensual sexual behavior. She
delineated that the intention was to include verbal and
physical affirmative behaviors and not exclusively verbal
consent. It was important that freely given be defined as
positively expressed through words or actions. She pointed
to the words reversible agreement and noted that people
had the right to do one thing but not another.
10:28:28 AM
Representative Tarr moved to Sections 6 through 8:
Section 6:
AS 11.56. 765. Failure to report a violent crime
committed against a child.
Adds the definition of consent found in sec. 5.
Section 7:
AS 11.56. 767. Failure to report a violent crime
committed against an adult.
Adds the definition of consent found in sec. 5.
Section 8:
AS 26.05.900. Other sexual misconduct; indecent
viewing, visual recording, or broadcasting.
Adds the definition of consent found in sec. 5.
Representative Tarr indicated that Sections 6 and 7 were
conforming sections. She furthered that Section 8 referred
to the military code of justice. She cited AS 26.05.900 and
reminded the committee that the state updated the Military
Code of Justice which occurred in 2014, which updated the
definition of consent at the time and was very similar to
the one in the bill. She relayed that AS 26.05.890 (h) very
closely matched the bills definition. It was passed by the
Alaska Legislature in 2016.
10:30:37 AM
Representative Tarr moved to Section 9 regarding rape kits:
Section 9:
AS 44.41.065. Sexual assault examination kits.
Amends subsection (a)(2)(1) to decrease the time
allowed for law enforcement agencies to ensure that
laboratories conduct serological or DNA test on sexual
examination kit from one year to six months from the
laboratory receiving the sexual assault examination
kit.
Representative Tarr recounted that since 2014, the
legislature had adopted 4 pieces of legislation and two
budget provisions that addressed the problems of untested
rape kits. She considered it a bipartisan success. She
elucidated that there were 2 crimes that had been
prosecuted because of the rape kit legislation. She favored
the victim centered policy and noted that by reducing the
rape kit testing timeframe to 6 months, it facilitated the
healing process.
Co-Chair Merrick recognized Representative Laddie Shaw in
the attendance.
Representative Rasmussen asked whether Section 9 included
rape kit testing for children as well as adults.
10:32:40 AM
Representative Tarr was uncertain. She deferred the answer
to the Department of Law.
Representative Tarr continued with the remainder of the
sectional analysis:
Section 10:
Repeals AS 11.41.470(10), AS l l.56.765(c)(4), AS l
l.56.767(c)(4), and AS 26.05.900(e)(8). These statutes
contain the previous definition of consent.
Section 11:
Uncodi.fied law - applicability
Amends uncodified law to state that modifications and
repeals apply to offenses committed on or after the
effective date of the bill.
Section 12:
Effective Date
Makes sec. 9 effective on July 1, 2023.
Representative Tarr noted that Section 10 contained the
repealers for the prior definition of consent. She
indicated Section 12 dealt with the processing of rape kits
at the crime lab and it was always necessary to provide a
full years time delay for the effective date to allow the
lab time to hire the new positions and put into place the
measures necessary to comply with the bill.
10:35:06 AM
Representative Tarr reverted to a prior topic and read the
code of military justice definition of consent:
Consent means a freely given agreement to the conduct
at issue by a competent person.
10:35:51 AM
JOHN SKIDMORE, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF LAW,
explained that Alaskas statutes concerning sexual assault
were a tiered structure. There were different levels of
conduct and different penalties associated with the
conduct. He delineated that it was important to keep in
mind the tiered approach when altering sexual assault
statutes because there were cascading affects from the
changes. He also highlighted that it was important to
consider the mental state or the intention or knowledge of
wrongdoing that constitutes part of a crime otherwise known
as the mens rea. He clarified that the mental state was
addressed in a statute separate from sexual assault
statutes. He instructed the committee that when referring
to sexual assault the statute states that lacking a mental
state the conduct was done knowingly and the conduct was
reckless as to the circumstance. Therefore, when addressing
sexual assault in statute it always meant that the conduct
was engaged in knowingly, but the circumstance had to be
proven to be reckless. He emphasized that they were the
fundamental principles to keep in mind when discussing
sexual assault statutes. He voiced that the department was
supportive of redefining the definition of consent. He
elaborated that under current law, the use of force or the
threat of force was required, which was problematic. For
instance, if a victim stated, "no" as a means of
communicating she did not want to engage in sexual conduct
it was not enough to be considered sexual assault and it
was not illegal for the perpetrator to engage in sexual
misconduct. Alaska led the nation in sexual assault cases,
and it was very concerning that the states sexual assault
law was so outdated. He believed the issue was a priority
that needed correcting.
10:39:13 AM
Mr. Skidmore continued that in version F the bill attempted
to change the definition of consent. He pointed to Section
1, page 1, line 8 of the bill and pointed to the language,
by the use of force or the express or implied threat of
force against any person. He informed the committee that
the definition of without consent previously described
the use of force. Therefore, in order to broaden the
definition of without consent and redefine consent and the
lack of consent, the elements in the definition would need
to be moved somewhere else. The bill moved the language,
"by the use of force or the express or implied threat of
force against any person into the elements of the crime
itself. However, what version F failed to do was to
incorporate two other aspects of current law and thereby
weakened the effect of current law on sexual assault.
First, the concept of incapacitation was necessary. He
delineated that under current law, the definition of
without consent implied that if an individual causes the
incapacitation of another person i.e., slipping a drug into
a drink at a bar to sexually assault them. He noted that
under current law the crime would be charged as sexual
assault in the first degree but under the current version
of the bill it would no longer be the case and was reduced
to sexual assault in the second degree.
10:41:22 AM
Representative Wool asked for an explanation of the
difference between first degree and second degree. Mr.
Skidmore responded that a first degree sexual assault
carried a penalty of 25 to 35 years, and second degree
sexual assault carried a penalty of 5 to 15 years.
Co-Chair Merrick indicated Representative David Nelson had
joined the meeting.
Mr. Skidmore continued to explain that the concept of
incapacitation was found in almost every other state's laws
and in the model penal code. He recounted his discussion of
tiers. He elaborated that besides causing incapacitation it
was also a crime to engage in sexual contact with an
incapacitated person that was not caused by the defendant.
Currently, and in version F of HB 5, it was the crime of
sexual assault in the second degree. He exemplified a
victim who consumed too much alcohol or was under the
influence of drugs. His point was that causing the
incapacitation was now grouped with coming across someone
who was already incapacitated and taking advantage of the
situation. The bill would eliminate the distinction, which
was why it was important to factor in tiers. He added that
the model penal code had the distinction as well as most
other states.
10:43:53 AM
Mr. Skidmore continued with the second lacking element of
without consent; property. He detailed that current law
also included threats against property such as pets, a
home, etc. If someone threatened to damage someones
property in order to persuade someone to have sex with them
it was a first degree sexual assault. Under version F, it
was eliminated in the bill and weakened current sexual
assault statutes. He offered the information so the
committee could consider whether to weaken or strengthen
sexual assault statutes.
10:45:14 AM
Mr. Skidmore addressed the definition of consent. He
reported that the definition was in Section 5 of the bill,
but he drew attention to Section 4, on page 4, of version
F. He considered the issues he would discuss were nuanced
and complex. He explained that under current law consent
was defined by what was not consent or without consent
versus what was consent. He noted that it was considered by
some to be the same thing. He emphasized that from a
prosecutors perspective there was an important distinction
because they had the burden of proof and had to prove the
elements of a crime beyond a reasonable doubt. Proving the
lack of something was proving in the negative, which was a
more complicated process. He further explained that if
consent was defined as a person consenting through inaction
it suggested that someone frozen with fear during a sexual
assault might be considered as having consented. Whereas,
in the opposite direction by defining that without consent
could include inaction it suggested that freezing was not
consenting. He stressed that it was an important
distinction for a prosecutor and was an issue brought up by
state prosecutors, the Department of Justice, and the
National Women's Judges Conference. He believed that it
was troubling that a statute suggested that freezing or
inaction was consent. He maintained that there was a better
way to define consent than how it was defined in Section 4
of the bill. He offered to present suggestions to improve
the consent definitions. He also commented on Subsection 3,
Section 4, page 4 line 11. He outlined that the words
withdrawn or revoked could be eliminated because it was
included in Section 5. He also pointed out that in Section
4, page 4, lines 15 through 16, Subsection 4, the language,
a person who is incapacitated as a result of an act of the
defendant cannot consent where it was located was
problematic and resulted in the downgrade to a sexual
assault in the second degree rather than in the first
degree. His focus was on the current bill, but noted that
provisions regarding fraud was lacking in version F.
10:50:06 AM
BRENDA STANFILL, EXECUTIVE DIRECTOR, ALASKA NETWORK ON
DOMESTIC VIOLENCE AND SEXUAL ASSAULT, informed the
committee that she would not read from her prepared remarks
because it had all been stated by the prior testifiers. She
offered that some of what members never heard in committees
was testimony from the victims. As an advocate for 25
years, she could determine when an assault would not be
prosecuted because the victim froze. She described the
repeated trauma victims experienced during a forensic exam
and often times they could not go home in their own
clothes. She wanted the committee members to understand the
experience of sexual assault for a victim and what words on
a paper cannot express. She shared that sexual assault was
often described as murder without murdering someone. She
stated that there was something about being violated in
this way that goes to the core of who you are and it often
took survivors years to regain what was taken. She wanted
legislators to think of the real experiences of the types
of things Mr. Skidmore described and how it affected the
decisions a victim made during the assault. She wanted to
make sure that the voices of those who experienced sexual
violence were with the members when making decisions
regarding HB 5.
Co-Chair Merrick invited Mr. Skidmore and Representative
Tarr back to the table.
10:53:27 AM
Representative Josephson asked Mr. Skidmore about
Section 1. He deemed that it reflected the worst sexual
conduct committed against an individual excluding sexual
crimes against children and was highlighted by the use of
force language. Mr. Skidmore responded, "Yes."
Representative Josephson recalled that an unclassified
felony was so bad it defied classification. He asked
whether there was a sexual assault that was an A felony.
Mr. Skidmore answered in the negative. Representative
Josephson inquired whether a sexual assault in the first
degree would be an A felony. Mr. Skidmore responded in the
affirmative. Representative Josephson guessed that an A
felony might be useful under Section 1 of the bill. Mr.
Skidmore responded that an attempt reduced the level of the
crime by 1 degree. There were no other sex crimes
classified as an A. There were proposals in other bills
that provided for A level sexual crimes, but nothing in
current law or version F classified an A level crime.
10:55:52 AM
Representative Josephson pointed to the bottom of page 2 of
the bill [provisions regarding sexual assault in the second
degree]. He described sexual assault as contact without
penetration. He suggested that sexual assault was bad
conduct but was not the worst of the worst. However, for
offenders that committed sexual penetration without the use
of force it would only be treated as a B felony. He
wondered if it was due to a proof problem at trial or
whether it was considered not as egregious as rape with the
use of force. Mr. Skidmore responded that criminal law
approached offenses in degrees of conduct through
evaluation of three concepts: mens rea, the actual act and
the egregiousness of the act, as well as the surrounding
circumstances of the act. He indicated that sexual assault
statutes dealt with sexual penetration and sexual contact.
Sexual contact was considered a lower severity crime than
penetration. In the legislation, redefining without consent
broadening the law beyond the use of force, the bill
followed the paradigm established in the model penal code
and by many other states that the circumstances of the
penetration carried different levels of severity.
Therefore, the bill classified penetration without force as
sexual assault in the second degree. The tiered approach
was established in current statute, the model penal code,
and most other states. Representative Josephson deduced
that most people would think penetration would warrant the
use of the currently unused A Felony because penetration
was the worse sexual conduct, even lacking force. He asked
why penetration was not an A felony. Mr. Skidmore cautioned
against mixing multiple concepts. He responded that the
difference between penetration and contact should be
differentiated and remained the same under current law and
the F version. He believed that use of force was the same
whether there was penetration or contact. The force used
could be the same but the sexual act of either penetration
or contact differentiated the tier of crime. He believed
that whether penetration with the lack of force coupled
with a lack of consent should be an A felony was a policy
call to be made by the legislature. The current bill placed
it in the same category that it already existed. He warned
against categorizing it as an unclassified felony because
use of force and no force were two different levels of
crime and were recognized as such in all American
jurisprudence. However, regarding penetration, he believed
that it was a policy call to be made by the legislature.
11:02:24 AM
Representative Josephson referred to page 4, lines 15
through 16, regarding incapacitation. He provided a
hypothetical situation where 2 individuals on a date drank
2 glasses of wine and became incapacitated. He asked if the
incapacitation provisions applied in the scenario. Mr.
Skidmore deduced that a couple of drinks generally did not
result in incapacitation. However, if one of the
individuals purchased 2 or 3 liters of wine on the date and
had sex with the other person it was prosecutable.
11:03:36 AM
Representative Josephson wondered what was missing in
subsection (C) 4 that did not accomplish what Mr. Skidmore
wanted regarding incapacitation. Mr. Skidmore replied that
it began with language regarding sexual assault in the
first degree on page 1, lines 8 through 9. He read the
following language:
by the use of force or the express or implied threat
of force against any person
Mr. Skidmore maintained that the language should include a
threat to property. He suggested that a subsection 2 should
be inserted with the language, where incapacitation was
also included caused by the offender was also included in
sexual assault in the first degree. Regarding sexual
assault to someone already incapacitated, he drew attention
to Section 2, page 2, lines 21 through 24, which in current
law described an offender encountering an incapacitated
individual and engaging in sexual penetration, but the
incapacitation was not caused by the offender. In response
to Representative Josephsons question, he cited Page 4,
lines 15 through 16 that read, a person who is
incapacitated as a result of an act of the defendant cannot
consent, which defined lack of consent. The provision
would be folded into page 2, lines 30 to 31, that read,
under circumstances not proscribed under AS 11.41.410, the
offender engages in sexual penetration with another person
without consent of that person, resulting in the same
level of offense. He stressed that the situation just
described ignored the tier structure resulting in a
weakening of current law. He contended that not amending
the bill was a policy call, but it was not what DOL had
recommended.
11:06:22 AM
Representative Wool restated that Alaska had the highest
rate of sexual crime and he had head that the state had the
harshest penalties in the country. Mr. Skidmore replied in
the negative. He concluded that the state still had the
highest rate of sex crimes despite having the strictest
penalties.
Representative Tarr interjected that there were statutes
that defined the crimes and distinguishing between the
statutes that defined the crimes and the statutes
containing the associated penalties was necessary. She
emphasized that it was necessary for the statute defining
the crime to be effective. The consent statute was
ineffective so the punitive statutes could not be
effective.
Representative Wool had a question about causing
incapacitation versus coming across a person already
incapacitated. He provided an example of a college campus
where excessive alcohol consumption happens and both
parties were drinking heavily but one person was purchasing
the drinks and the other blacked out without a memory of
consenting to engaging in sexual activity that took place.
He asked whether that was a worse crime than someone having
sexual contact with an already incapacitated person.
Mr. Skidmore responded in the affirmative and indicated
that existed in current law and in the model penal code. He
maintained that there were two different tiers in current
law. Representative Wool understood dropping a pill in
someone's drink versus two people drinking and sexual
activity resulted, he worried about the consequences of the
scenario described above with including too fine a
definition of incapacitation. He referred to page 4,
Section 4, subsection 1 and 2, lines 7 through 10 and read
the following:
an expression of lack of consent through words or
conduct means there is no consent
both a person's action and inaction, in the context
of the circumstances, may be considered
Representative Wool provided an example of someone freezing
where the state of mind was different, and the inaction was
due to shyness or some other reason but was not intended as
a lack of consent. He wondered how it was differentiated
and deemed that the two measures were contradictory.
11:12:14 AM
Representative Tarr clarified that she had no interest in
weakening current law as it related to causing a persons
incapacitation or happening on an incapacitated person. She
was not supportive of the change and agreed with the tiered
law because there was an element of premeditation when
someone decided to cause a person to become incapacitated,
which made it a more serious crime. She also commented on
the second part of Representative Wool's question and
agreed with his analysis. She hoped for an opportunity to
address the slightly contradictory language.
11:13:38 AM
Mr. Skidmore appreciated Representative Wools example. He
explained that the bill did not criminalize engaging in sex
under the influence of alcohol. He voiced that
incapacitation was defined in statute as a very specific
level of conduct. He defined incapacitation according to AS
11.41.470 (2), which meant that a person was temporarily
incapable of appraising the nature of ones own conduct.
He determined that it was not a couple of drinks or shots;
an individual had to be so drunk they were incapable of
expressing themselves or talking. He contended that current
law nor the bill was merely describing having a few drinks.
He was simply saying that he did not want to see the law
weakened regarding incapacitation. He spoke of the scenario
in college where a person knowingly planned to provide too
much alcohol to another person and he felt that the
behavior was unacceptable.
11:15:46 AM
Representative Carpenter referred to line 11, on page 3, in
Section 4, subsection (C) (3), and read the language,
consent may be revoked or withdrawn at any time He
wondered if the section could be construed as removing
consent one week after the event. Mr. Skidmore responded in
the negative. He furthered that it inferred a withdrawal of
consent prior to the act occurring for it to be a crime.
Representative Carpenter pointed to the words at any time
and read line 12, any clear verbal refusal establishes the
revocation or withdrawal of prior consent. He asked the
question whether the bill unintentionally allowed regret
to become a weapon if the definition of at any time was up
to interpretation. Mr. Skidmore agreed that it was possible
for the department to draft the legislation more clearly
but did not think the law would be interpreted the way
Representative Carpenter suggested it.
Representative Tarr had recommended removing the section
altogether because the actual consent definition in lines
18 through 20 contained the reversible agreement language
and was much clearer. She read the language, reversible
agreement specific to the conduct at issue. She clarified
that the language contextualized it to mean it was
happening at the time. The idea of the bill was to provide
clarity rather than add to any confusion. She wanted to
avoid criminalizing healthy behavior.
11:19:29 AM
Representative Josephson mentioned aggravator AS 12.55.155
c (5) regarding consumption of alcohol for a particularly
vulnerable person. He wondered if the statute would be
ignored or never be available for prosecution in the
context of the statutory definition of incapacitation. Mr.
Skidmore provided background information. He responded that
once an offender was convicted of the elements of a crime,
they were subject to sentencing via a presumptive range.
The conviction could last longer than the presumptive range
using an aggravator or using a mitigator, which would
produce a sentence below the range. He answered that when
an aggravator established the same elements of the crime
then the aggravator was meaningless. He summarized that if
the elements of the crime were proven and part of the
convicting statute then an aggravator could not be used. He
specified that the aggravator cited by Representative
Josephson that concerned vulnerable victims could not be
used when one of the elements of the sexual assault crime
was incapacitation because the incapacity already made the
victim vulnerable.
11:21:44 AM
Representative Josephson returned to the Schneider case. He
referred to the bill on page 4, lines 2 through 3, and
read, "sexual contact" does not include an offender
knowingly causing a person to come into contact with
semen. He was trying to grasp the concept. Mr. Skidmore
replied that the scenario that was resolved in the
Schneider case was that contact with semen was not part of
the definition of sexual contact. The matter was resolved
by adding contact with semen to the definition of sexual
contact. He used the example of an inmate throwing semen or
bodily fluids at guards cited earlier. He furthered that
under current law, sexual contact included contact with
semen, which was addressed as harassment. When the
definition of without consent was changed in the bill, so
that force was no longer required, the inmate/guard
scenario would be turned into a sexual assault. The
language referenced by Representative Josephson preserved
current law from the Schneider fix and the offense
remained a felony but was not turned into a sexual assault.
Representative Josephson had previously discussed his
concern about pairing sexual penetration without consent
but lacking use of force with a B felony. He pointed to
page 3, containing the same policy call for a C felony
for sexual contact. Mr. Skidmore summarized Representative
Josephsons question regarding the policy call for sexual
penetration with and without the use of force and lacking
consent resulting in two tiers of crimes and was repeated
for sexual contact. Mr. Skidmore answered in the
affirmative that the bill followed the same tiered approach
for sexual contact.
11:25:04 AM
Representative LeBon cited Page 4, Line 11, regarding
revocation of consent. He had a question following the same
lines of questioning as Representative Carpenter. He
wondered how he would advise a college age son who engaged
in casual sex. He wondered whether the son should use a
consent form and enter into a contract before the sexual
act with additional consent afterwards. Mr. Skidmore
answered in the negative and voiced that was not what
anyone described nor what the bill required. He suggested
that most sexual activity was more spontaneous. He
advocated for a discussion about the issue and advising his
son to ensure that both parties were on the same page. He
furthered that the discussion should happen for college
bound women as well. He noted that there were sexual
interaction discussions with students in some sexual
education programs in the state that taught his advice.
11:27:58 AM
Representative Tarr interjected that the college student
would likely learn the FRIES acronym, freely given,
reversible, informed, enthusiastic, and specific, that was
considered the accurate way to describe consent to young
adults. She indicated that she attempted to have the
language in the law match what was being taught and was
understood as consent. She mentioned prior testimony from
the Alaska School Activities Association that coached a
boys into men program that spoke about consent. The
association favored a synchronized definition of consent in
law. She hoped the bill would provide more clarity that was
more consistent with human behavior and what was expected.
She thought that the most exciting part of the legislation
was to be able to have the conversation with young people
and prevent harm through education. The criminal part of it
meant that someone was already harmed.
11:29:57 AM
Representative LeBon was concerned about unjust
accusations. He suggested that encouraging a dating history
and a friendship that evolved into consensual sex was the
safest approach.
Representative Wool concurred that Representative LeBon and
deemed that a written contract might be necessary in the
future. He asked if someone could give consent if they were
intoxicated and then revoked the consent afterwards
claiming they were drunk. He wondered whether it was a
valid defense.
Mr. Skidmore responded that intoxication did not
necessarily disallow consent and repeated that the timing
of the revocation had to take place before the sexual act.
Representative Tarr added that mens rea was a factor to
evaluate the behavior and believed that there were
protective layers that prevented any accusations found in
criminal behavior.
11:33:21 AM
Mr. Skidmore furthered that the law was designed to protect
against miscommunications. The law required proof that an
offender acted recklessly in terms of lack of consent. He
offered that if the individual agreed at the time there was
consent and admitted to revocation after the act proved
there was prior consent. Representative Wool relayed that
there were many cases where a person had been drinking and
seemed totally coherent and later they blacked out and did
not remember anything. He used an example of an extreme
case related to a person not remembering murdering another
person. He asked whether that was incapacitation. Mr.
Skidmore replied that it did not meet the definition of
incapacitation. He was familiar with the concept of alcohol
blackouts and even though the victim would say she did not
recall consenting but there were other witnesses stating
that the two people were equally engaging made those types
of cases very difficult or impossible to prosecute. He
reminded the committee that mens rea was considered and the
law required proof beyond a reasonable doubt.
11:36:23 AM
Representative Rasmussen asked for an explanation of the
current process where the Department of Public Safety (DPS)
brought a case forward and asked DOL to prosecute. She
heard a lot of concern from certain committee members about
the need to get a contract to engage in sexual activity and
she was not fully understanding why the concern was being
raised. Mr. Skidmore responded that in an incident
involving a sexual act, the victim in the scenario would
first have to report to law enforcement and then law
enforcement would investigate and gather evidence. He
explained that law enforcement would then consider whether
the situation violated current laws and if so, the case was
referred to the prosecutors office. The state would
consider whether the elements of the case was enough to
prove something beyond a reasonable doubt. He said the
process would not change under the proposed law. However,
what would change was the law and actions that should be
criminalized or not. Representative Rasmussen used a future
scenario where her daughter was at a party, and someone
tried to engage in sexual activity, and she stated no.
Currently, it was completely legal for the other person to
engage in sexual activity with the daughter. She asked for
verification that it was currently completely legal for
someone to engage in sexual activity with her under the
scenario. Mr. Skidmore answered in the affirmative.
11:39:58 AM
Representative Carpenter provided a scenario that took
place in a rural setting. He asked where a victim could go
if law enforcement was the problem. Mr. Skidmore answered
that the individual would go to the state troopers. He
indicated that if an officer was involved in perpetrating
any crime against an individual it warranted investigation.
He detailed that each law enforcement agency had an
internal affairs department to investigate internal crimes
however, if it happened in a rural village, the person
would turn to the state troopers. He added that the state
prosecutors had a special unit called the Special
Prosecutions Unit that handled crimes by law enforcement.
Representative Carpenter commented that someone in the
situation would be reluctant to trust reporting to law
enforcement. He wondered if there were other places where
they could report a crime outside of law enforcement. Mr.
Skidmore suggested the scenario would be difficult because
it required an investigation, which had to be done by law
enforcement.
11:43:17 AM
Representative Josephson thought the reason the bill was
important had to do with its effect in a courtroom where
the jury instructions would look different. He guessed that
the bill would cause potential new cases. He deduced that
there would still be a need to decline many cases. Mr.
Skidmore replied that changing the law would allow for more
cases to move forward. However, the bill would not make the
cases any easier to prosecute and he expected that the
cases would remain difficult to prosecute. The question was
not how to make the process easier but what behavior should
be illegal. He thought that the cases would be very
difficult but it was not a reason not to modify the law.
11:45:33 AM
Representative Wool exemplified someone who froze and was
too scared to say no or fight back but there was no force.
He wondered if the delineation was no consent and no force,
but the act proceeded because there was no resistance and
no fight. He asked if that was the no crime scenario. Mr.
Skidmore answered in the affirmative. However, it was
always difficult to provide a definitive answer in
prosecution because each case was different. He noted that
he had never seen the same fact pattern twice. There were
similarities in cases, but there were always nuances. There
were likely many more facts than what was provided in
hypothetical situations. He suggested that the legislature
set policy around conduct it deemed should be criminalized.
He was cautious with hypothetical scenarios. Representative
Wool indicated he asked the question because Mr. Skidmore
unequivocally stated no to Representative Rasmussens
question. Mr. Skidmore stated in the affirmative because he
believed it was the category the bill covered. However, the
nuances of the case had to be understood as well.
Co-Chair Merrick commented that the committee liked
hypothetical scenarios.
Representative Tarr thanked the co-chair for hearing the
bill.
Co-Chair Merrick reviewed the agenda for the afternoon.
HB 5 was HEARD and HELD in committee for further
consideration.
ADJOURNMENT
11:49:51 AM
The meeting was adjourned at 11:49 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 5 Supporting Document 051222.pdf |
HFIN 5/12/2022 9:00:00 AM |
HB 5 |
| HB 5 Sectional Analysis HJUD v. F0 51222.pdf |
HFIN 5/12/2022 9:00:00 AM |
HB 5 |