01/30/2002 01:12 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 30, 2002
1:12 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 297
"An Act related to aggravating factors at sentencing."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 297
SHORT TITLE:AGGRAVATOR FOR SEXUAL OFFENSES
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
01/14/02 1952 (H) PREFILE RELEASED 1/4/02
01/14/02 1952 (H) READ THE FIRST TIME -
REFERRALS
01/14/02 1952 (H) JUD, FIN
01/14/02 1952 (H) REFERRED TO JUDICIARY
01/30/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LORALI CARTER, Staff
to Representative Kevin Meyer
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 297.
KAREN BITZER, Executive Director
Standing Together Against Rape (STAR)
1057 West Fireweed Lane, Suite 230
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 297 and
responded to questions.
SUSAN SCUDDER, Executive Director
Council on Domestic Violence and Sexual Assault (CDVSA)
Department of Public Safety (DPS)
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Testified in support of HB 297 and
responded to questions.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 297 and
responded to questions.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified in opposition to HB 297 and
responded to questions.
ACTION NARRATIVE
TAPE 02-5, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:12 p.m. Representatives
Rokeberg, Ogan, Coghill, Meyer, and Berkowitz were present at
the call to order. Representatives James and Kookesh arrived as
the meeting was in progress.
HB 297 - AGGRAVATOR FOR SEXUAL OFFENSES
Number 0050
CHAIR ROKEBERG announced that the committee would hear HOUSE
BILL NO. 297, "An Act related to aggravating factors at
sentencing."
Number 0083
REPRESENTATIVE MEYER, speaking as the sponsor of HB 297, said
that when drugs or alcohol are used to lower the inhibitions of
a person to the point that he/she becomes a victim of sexual
assault, the seriousness of the crime should be elevated in the
eye of court for the purposes of sentencing. For example, he
said, the presumptive sentence for a first offense of sexual
assault is eight years; with the aggravator proposed by HB 297,
the judge could increase the sentence up to as much as thirty
years. He relayed that sexual assault continues to be a crime
that devastates communities. He explained that "ruffies" (ph)
and gamma-hydroxybutrate (GHB) are commonly known as date rape
drugs, and are used by sex offenders to prevent their victims
from resisting and being able to remember the crime. He said
that as the father of two young daughters, "that scares the heck
out of me that somebody could give somebody a drug, sexually
assault them, and then [the victim] would not even know that
they were sexually assaulted."
REPRESENTATIVE MEYER opined that sex offenders who use these
types of drugs should receive stiffer penalties. He noted that
HB 297 does not require the court to impose stricter penalties
for sexual assault; it simply provides the courts with the
ability to do so. He mentioned that members' packets contain
letters of support from organizations that provide help to
victims of sexual assault. He also said that, "There is no
expected increase in cost to the state with passage of this
bill."
REPRESENTATIVE OGAN said his concern with the language in HB 297
is that if the defendant supplied any amount of alcohol, even
just one sip of beer, it could be considered an aggravator under
the law. He surmised, notwithstanding claims by the Department
of Law and the Department of Public Safety that legislative
intent will be followed, that not many judges research
legislative proceedings in order to follow legislative intent.
He suggested that instead, judges use literal interpretations of
the law, and he pointed out that language in HB 297 simply
states "supplied" without reference to amount.
REPRESENTATIVE MEYER said that although he shares that concern,
he thinks that in the courtroom, it would be up to the attorneys
to prove, first, that a sexual assault did occur and, then, that
alcohol was used to lower the victim's inhibitions. He posited
that if the defendant said, "Hey, I only bought her a half a
drink," the judge is not going to let that be an aggravating
factor "unless, in fact, that half a beer did lower her
inhibitions." He pointed out that he is not as concerned with
the alcohol aspect of HB 297 as he is with having an aggravating
factor apply to the use of newly developed drugs that are used
specifically to take advantage of a victim.
REPRESENTATIVE OGAN reiterated his concerns regarding the
literal interpretation of the language currently in HB 297.
Number 0665
REPRESENTATIVE MEYER alluded to the fact that HB 297 also
contains language stating that the aggravator applies to cases
in which alcohol or controlled substances were supplied "in
connection with the offense."
REPRESENTATIVE BERKOWITZ said that there are three issues that
he has concerns about. First, he asked whether there are any
cases in which the failure to have this aggravator constituted a
problem. Second, he pointed out that AS 12.55.155(c)(5) says
"the defendant knew or reasonably should have known that the
victim of the offense was particularly vulnerable or ... for any
other reason substantially incapable of exercising normal
physical or mental powers of resistance" and that it is
supported by case law - Sakeagak v. State; he asked why this did
not already cover the conduct HB 297 is attempting to address.
Third, he asked whether there is a risk that by applying an
aggravator to a case in which alcohol is used, it is asserting
that such a crime is worse than what he called a "snatch and
grab" type of case in which someone is dragged off and raped but
alcohol does not play a part. He asked, "Is the use of drink or
drug something that we want to condemn as a worse form of
conduct?". Representative Berkowitz noted that he appreciates
what the sponsor is trying to do, and that he thinks the sponsor
is sending an important public message, much of which, he
opined, is "getting across" through this discussion.
REPRESENTATIVE BERKOWITZ also mentioned that in addition to the
Sakeagak case, both Denny v. State (ph) and George v. State, a
1992 Alaska Court of Appeals case, "go to show that intoxication
of the victim can be used as an aggravator." He then read from
the Sakeagak decision:
When Sakeagak presented this argument to Judge
Jeffery, the judge concluded that AS 12.55.155(g) was
intended to bar a sentencing judge from finding
aggravators or mitigators based on the defendant's
intoxication, but that AS 12.55.155(g) was not
intended to bar a judge from considering a victim's
intoxication when determining the disabilities
described in AS 12.55.155(c)(5). We agree.
REPRESENTATIVE BERKOWITZ concluded from this paragraph that the
Alaska Court of Appeals agrees with the trial court decision
that intoxication of the victim is an element that can be used
in aggravating a sentence.
Number 0936
REPRESENTATIVE JAMES noted that while certainly the intoxication
of the victim is an aggravator, it seems to her that the
aggravators could stack up if the defendant supplied the alcohol
with the intent to cause the victim's vulnerability. She
surmised that stacking aggravators against the defendant in such
a fashion is part of the sponsor's intent.
REPRESENTATIVE MEYER said his intent is to make it perfectly
clear that [supplying] alcohol or drugs is an aggravator. On
the point of whether it is worse to rape someone after providing
him/her with alcohol or drugs versus just simply raping someone,
he said that this is a policy call for the committee to make,
but in his opinion it is much worse because the victim's trust
in that person has been violated.
REPRESENTATIVE BERKOWITZ, in response to questions, pointed out
that the crime of sexual assault in the second degree [AS
11.41.420] is committed when "(3) the offender engages in sexual
penetration with a person who the offender knows is (A) mentally
incapable; (B) incapacitated; or (C) unaware that a sexual act
is being committed". He also pointed out that the crime of
sexual assault in the third degree [AS 11.41.425] is committed
when the offender "(1) engages in sexual contact with a person
who the offender knows is (A) mentally incapable; (B)
incapacitated; or (C) unaware that a sexual act is being
committed". He said he thinks that in some convictions, the
incapacitation of the victim is something that's factored into
the charge. He also indicated that another Alaska Statute says
that if one supplies incapacitating elements such as the date-
rape drug rohypnol, that's a separate charge altogether - a
separate felony.
CHAIR ROKEBERG surmised, "So, you could have the gradations in
the level of sexual assault [according to] the definition under
statute, take it into account, and have a second charge as
well."
REPRESENTATIVE MEYER asked which statute contains that separate
charge.
REPRESENTATIVE BERKOWITZ indicated that he and his staff would
research the specific statute and provide details.
Number 1274
LORALI CARTER, Staff to Representative Kevin Meyer, Alaska State
Legislature, sponsor, added that in 1997 "the legislature passed
legislation to add rohypnol and GHB to the schedule IVA drug
list."
REPRESENTATIVE OGAN said that he does not think that a rape
involving alcohol is worse than a rape where the victim consumed
no alcohol; both are violent assaults. He opined that people
already know that when they consume alcohol their judgment is
impaired and they are placing themselves in a vulnerable
position.
MS. CARTER stated:
It doesn't matter if a woman is out drinking a lot, or
wearing a short skirt or a low-cut blouse - her rights
to live freely are her rights. She's not asking to be
sexually assaulted no matter what her behavior is. No
means no. It doesn't matter how much alcohol she's
had, she's not asking to be sexually assaulted.
REPRESENTATIVE OGAN said: "I don't mean in any way to imply
that, but what I am saying is that if this is going to be an
aggravator, ... there is some conduct that a person willingly
engaged in beforehand that maybe made them a little bit more
susceptible." He added that he agrees with Ms. Carter that, "No
means no."
CHAIR ROKEBERG noted that the courts also recognize mitigating
factors at sentencing.
Number 1463
KAREN BITZER, Executive Director, Standing Together Against Rape
(STAR), testified via teleconference in support of HB 297. She
explained that last year, STAR advocates responded to 267
callouts for newly reported cases of sexual assault, and to
almost 300 cases of child sexual abuse. She said that the need
for this type of special sentencing aggravator was clearly noted
during a 2001 meeting of the STAR legislative committee focus
group, which was sponsored by STAR and attended by district
attorneys, law enforcement, board members, and other interested
persons. During this meeting, discussion regarding the number
of sexual assaults involving alcohol and the increased numbers
of date-rape drug cases brought to light the need for judicial
clarity on these topics.
MS. BITZER posited that HB 297 would offer clarity to judges
during the sentencing phase without having to build case law in
order to "impose a higher degree of punishment because of the
use of drugs or alcohol in a crime." She said that
unfortunately, STAR is beginning to see more and more cases of
sexual assault that may be date-rape cases involving the use of
drugs that incapacitate victims. She explained that drugs such
as rohypnol are slipped into the drinks of victims for the
purpose of incapacitating them, and she concluded that this
makes the act much more premeditated. While acknowledging that
alcohol is still mainly the drug of choice, she indicated that
date-rape drugs are becoming more prevalent in Alaska. She also
noted that the formula for these drugs, which can be made with
high school chemistry sets, can be found on Internet sites. In
conclusion, she said that on 1/16/02 the board of directors of
STAR passed a motion to support HB 297.
MS. BITZER, in response to a question, reiterated her position
that HB 297 would clarify for judges that the use of alcohol or
drugs in sexual assault cases could be considered an aggravating
factor. She opined that it would benefit the judge to have some
clear direction regarding aggravators. She surmised that
providing clarity to the judges at sentencing is one of the
reasons why there is such an extensive list of aggravators. In
response to another question, she said that STAR believes that
this is an opportunity to make it very clear that the judge can,
indeed, impose a higher sentence if rohypnol or alcohol is used
with the intent to incapacitate the victim in order to make
him/her more vulnerable to the crime.
REPRESENTATIVE MEYER remarked that it is very difficult to prove
that a sexual assault occurred, "let alone trying to prove the
aggravators."
Number 1720
MS. BITZER agreed, adding that it is especially difficult when
date-rape drugs are involved because the victim's memory is
fuzzy and so an evidentiary case must be made. She noted that
district attorneys work hard to build those cases, and that more
and more of those types of cases are getting through the
judicial process. She remarked that a high percentage of cases
involve either alcohol or drugs. She noted, however, that the
problem with proving drugs were used is that by the time the
victim wakes up, the drugs have passed through his/her system
and so drug tests won't show the presence of rohypnol. She
said:
We do know that, just from [the] consistency of the
victim's story: "I wasn't drinking very much; I don't
understand what happened." Or, "I wasn't drinking at
all and I don't understand what happened; I was just
having a Coke." And then [through] little flashbacks
and pieces of memory they're able to piece some things
together, which very much leads to the fact that
they've been assaulted.
MS. BITZER added that the stronger the case and the more clarity
there is for the judge, the better the sentencing; "what we're
trying to do here is ... make things extremely clear for the
sentencing phase."
REPRESENTATIVE OGAN noted that Ms. Bitzer used the phrase: "The
intent to incapacitate the victim." He asked if she expected
the aggravating factor in HB 297 to also apply in instances
where the victim had just one beer, for example, before he/she
was sexually assaulted.
MS. BITZER, after noting that just sitting down and having a
beer with someone doesn't necessarily increase a person's
vulnerability, replied that if the motive for supplying the
alcohol is to try and render a person more vulnerable then,
indeed, that is an aggravator. She suggested that it is not the
purpose of HB 297 to pinpoint when someone becomes vulnerable,
since that varies from person to person; instead, the purpose is
to give judges the ability to add a sentencing aggravator if it
becomes clear during the trial that alcohol or drugs were used
"as a part of that case."
Number 1917
REPRESENTATIVE OGAN again reiterated his concern that the
proposed law could be literally interpreted to say that an
aggravator would apply if alcohol were supplied, regardless of
the amount or the intent of the supplier. He remarked that,
"for felonious behavior, there has to be a culpable mental
state."
MS. BITZER argued that what HB 297 is saying is that if someone
supplies another with alcohol and then goes on to sexually
assault him/her, the judge then has the ability to impose an
aggravator at sentencing. She reminded members that it is not
merely the fact that some amount of alcohol was supplied that is
sending a person to jail; that person is going to jail because
he/she was found guilty of sexually assaulted someone.
REPRESENTATIVE BERKOWITZ pointed out that AS 12.55.155(c)(4)
currently reads, "the defendant employed a dangerous instrument
in furtherance of the offense". He suggested changing it to
read, "the defendant employed [a dangerous instrument,] an
intoxicant, or controlled substance in furtherance of the
offense". He opined that such a change "could be used as an
aggravator" and would answer Representative Ogan's concerns. He
also noted that it would do something else which he thinks is
fairly critical when working within the criminal code: it would
keep the language general, rather than tailoring it to specific
types of offenses. Thus if someone died as a result of a
nonsexual assault, for example, then this aggravator could also
apply. Otherwise, he pointed out, if this aggravator is limited
to sexual assaults, using alcohol or drugs to further a
[nonsexual] assault might not constitute an aggravator.
Number 2067
SUSAN SCUDDER, Executive Director, Council on Domestic Violence
and Sexual Assault (CDVSA), Department of Public Safety (DPS),
testified in support of HB 297. She noted that just this week
in USA Today there is a headline that reads: "'Date rape' drug
GHB making inroads in nation's club scene; As it grows, so does
death toll." She recounted that the article states that in a
two-year period, the emergency room visits for this drug, which
reflect only the very serious cases of people dying or becoming
very sick, quadrupled from 1998 to 2000. She stated that the
drug is out there, it's being used, and it's readily made with
chemicals that are available following recipes off the Internet.
She said that the CDVSA supports the addition of an aggravator
pertaining to the use of "something that incapacitates ... or
lowers the inhibitions of the victim." If it means that a
perpetrator will be off the streets longer, that will help lower
the rate of sexual assault in Alaska, she stated, adding that
last year, through programs throughout Alaska, the CDVSA helped
more than 2,000 victims of sexual assault.
REPRESENTATIVE OGAN said he agrees that the use of date-rape
drugs should be an aggravating factor because there is "clearly
a culpable mental state of the perpetrator to influence the
victim". He again reiterated, however, that what he is
struggling with is the concept that the legal and socially
acceptable behavior of having a glass of wine with dinner, for
example, could also be considered an aggravator.
MS. SCUDDER opined that sexual assault is a crime of power and
control, and when the perpetrator is doing something to lower
the inhibitions of the victim, then it would be fitting to make
it an aggravating factor.
REPRESENTATIVE BERKOWITZ asked whether Ms. Scudder knew of any
cases in which - or any reason why - existing AS 12.55.155(c)(5)
would not apply. He also asked her whether she thinks that
adoption of HB 297 as currently written would in essence say
that a rape involving alcohol or drugs is worse than a rape
without those elements.
MS. SCUDDER, in response to the latter question, said it does
seem to imply that. She added that although both types of rape
involve predatory behavior, by using alcohol or drugs, the
perpetrator is specifically trying to make the victim more
helpless, which, she opined, is a valid case for having an
aggravator.
CHAIR ROKEBERG made reference to the possibility that having an
aggravator pertaining to the consensual use of alcohol might
predispose the judge to being lenient in sentencing.
Number 2315
REPRESENTATIVE MEYER asked Ms. Scudder whether she thinks the
use of alcohol or drugs should be listed as a separate
aggravating factor, as HB 297 proposes, or whether AS
12.55.155(c)(4) - if altered as Representative Berkowitz
suggested - and AS 12.55.155(c)(5) adequately address the issue.
He posited that by passing HB 297, the legislature would be
saying that the courts should decide whether the amount of
alcohol or drugs was excessive and/or were used to lower the
victim's inhibitions, and thus should be considered an
aggravator.
MS. SCUDDER, in response, indicated that having a specific
aggravator listed separately would be preferable, and agreed
with Representative Meyer's assessment of HB 297.
REPRESENTATIVE BERKOWITZ, on the issue of crimes that violate
trust, asked:
Shouldn't we cover people who are victimized for a
regular assault on account of a trust relationship
gone bad, or who are robbed on account of a trust
relationship gone bad? Isn't what we're trying to
protect, as a policy concern, [is] the violation of
trust?
CHAIR ROKEBERG, on that point, mentioned "a trailer case out in
Muldoon this fall: son kills mother for money, stuffs her under
the ... the cabinet."
REPRESENTATIVE BERKOWITZ continued: "Those are trust issues.
They would clearly, it seems to me, apply in a sexual assault
context. But if we want to punish violations of trust, why
limit it to this type of crime?"
MS. SCUDDER responded: "Because of the nature the crime; I
think being sexually assaulted and being robbed are horrifically
different as far as the impact on the victim."
REPRESENTATIVE BERKOWITZ said if there is a violation of trust,
for example, and that constitutes an aggravator, then this would
include violations of trust in the context of sexual assault;
however, it would also include violations of trust in the
context of assault and property crimes, and would send a message
that the protection of trust is something the legislature wants
to ensure. He said that to him, this makes as much sense as
specifying that the aggravator only pertain to crimes of sexual
assault.
REPRESENTATIVE MEYER suggested that creating an aggravator for
violations of trust should be done in separate legislation.
REPRESENTATIVE BERKOWITZ mentioned that amending HB 297 to
include all violations of trust as an aggravator would allow it
to address "a greater universe of crimes."
TAPE 02-5, SIDE B
Number 2480
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), testified in support of HB
297. In response to some of the issues raised, she said:
Sexual assault is horrible, whatever the circumstance,
and I don't think that we're trying to say one
victim's experience is more or less horrible because
of the factors surrounding what happened. ... I think
what we're trying to look at is the offender's
behavior and his choices of how he commits the sexual
assault. I think we agree with Representative James
that if [AS 12.55.155(c)(5)] applies, good. [But] we
want another factor to also apply so that more years
can be added. We feel more strongly about the date-
rape drugs but we are [still] concerned with alcohol;
the sexual assault statutes covered in this bill don't
only cover adults, it covers children. Pedophiles can
groom children, they can use alcohol as a means to ...
further the crimes that they're going to commit, and
that's not acceptable to us.
MS. HUGONIN said she understood the concern regarding the what-
happens-with-one-drink kind of situation, but didn't think that
would be the majority of cases. She suggested, rather, that
what should be included in law are the situations in which
someone gives "one bottle, two bottles, slips in some vodka"; in
other words, the type of perpetrator that provides more than
just the one drink.
MS. HUGONIN offered that in sexual assault crimes there are
usually three defenses. First, the perpetrator claims that it's
a case of mistaken identity: "it happened but it's not me - you
got the wrong person." Second, the perpetrator claims consent
was given: "it did happen but the person who's alleging that it
was not consensual is wrong - it was consensual." Or third, the
perpetrator claims it just didn't happen at all. She opined
that such defenses are furthered if the use of alcohol or drugs
cannot be brought in as an aggravator.
Number 2365
REPRESENTATIVE BERKOWITZ, on that last point, interjected to
clarify that an aggravating factor would not be presented at
trial - it would not be part of the proof. The discussion
pertaining to HB 297 is an entirely separate issue, he added.
MS. HUGONIN noted that she understands that HB 297 pertains to
sentencing. On the issue of why it would be preferable to
specify only sexual assault crimes rather than including a broad
range of crimes in which trust may be involved, she pointed out
that Alaska has consistently, at least since 1989, ranked in the
top five states in per-capita sexual assaults. In fact, she
added, Alaska usually ranks number one or number two. She
remarked that she did not know where Alaska is ranked with
regard to the number of robberies or [other] property crimes.
Therefore, she opined, as a public policy decision, and since
the crime of sexual assault happens regularly and is a
significant problem in Alaska, it is appropriate to treat it
more seriously. She concluded by saying that she hopes the
committee will be able to work out language that will send a
strong message that, "If people choose to use substances to
further their criminal activity, it's going to cost them more
when they're convicted."
REPRESENTATIVE JAMES commented that she finds it strange that
aggravating factors are not brought up at trial.
REPRESENTATIVE BERKOWITZ, to further clarify, explained that
"aggravators only apply following conviction; you need to be
convicted in order to go through sentencing, and at sentencing,
that's when the ... aggravators would kick in."
REPRESENTATIVE JAMES, after noting that she understood that,
asked: "But how are they recognized? How do you know they're
there if they haven't been presented in trial?"
REPRESENTATIVE BERKOWITZ explained that there are sentencing
hearings during which sentencing paperwork is filed; thus it's a
subsequent set of procedures.
CHAIR ROKEBERG noted that in Alaska courts, sometimes the
sentencing hearing can be as "big" as the trial itself.
REPRESENTATIVE BERKOWITZ added that the trial prosecutor has to
file a notice of aggravators that he/she is going to suggest to
the court, while the defense files a list of mitigators that
might apply, "and then the two sides go at it to try and prove
or disprove what they think would apply in that case."
Number 2216
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration, testified via teleconference in
opposition to HB 297. She brought up the following areas of
concern:
If the intent of the bill, as expressed in the sponsor
statement and all the testimony I've already heard so
far, [is] to focus more on intentional supply of
alcohol or controlled substances with the specific
purpose of lowering the inhibitions of the victim
[for] a premeditated sexual assault, this bill does
way more than that. It is over-inclusive. It
includes, as we've already heard in previous
[testimony], things that are not related to lowering
the inhibitions significantly [for] a premeditated
assault. You could have somebody just handing a
person a drink, as Representative Ogan explained, that
would fit and would be a basis to find this
aggravator.
This aggravator is also not necessary because, as
already explained, there is an existing aggravator -
[AS] 12.55.155(c)(5) - that has been liberally
interpreted by the courts ... [in] Sakeagak v. State,
... [which] specifically said [it applies]. So
there's no confusion now; it's quite clear that if a
victim is vulnerable for any reason [or] they have
been incapacitated - they are incapable of exercising
normal physical or mental powers of resistance - by
intoxication, then that already is an aggravator. So,
we have an aggravator on the books now that fits [this
situation].
MS. WILSON also noted that the court has the ability to convict
a person on separate charges, and that there is a preference for
consecutive sentencing; hence, there are already mechanisms for
providing increased sentences. For example, a person could be
convicted of both a sexual assault charge and a controlled
substance charge, or a sexual assault charge and a contributing-
to-the-delinquency-of-a-minor charge.
Number 2053
MS. WILSON referred to the language "supplied" and asked whether
simply handing a person a drink that he/she has already bought
would fall under HB 297. She said that "supplied" seems to be a
difficult term, and opined that it is perhaps overly inclusive
compared to what is intended by the sponsor. In response to one
of the points raised by Representative Berkowitz, she said that
she does not know of any cases where the failure to have this
aggravator has been problematic, particularly in light of the
fact that AS 12.55.155(c)(5) is available and has been applied
in some cases already.
MS. WILSON then referred to the 1994 Alaska Court of Appeals
case of Haire v. State. She said that Mr. Haire was convicted
of sexual abuse of a minor in the first degree, exploitation of
a minor, and misconduct involving a controlled substance in the
third degree. She explained that, "this involved him sexually
abusing his two stepdaughters over a period of time where he
displayed x-rated videos; plied them with cigarettes, liquor,
and marijuana; and then engaged in sexual contact with them."
She noted that the AS 12.55.155(c)(5) aggravator was applied in
this case as well as other aggravators such as (c)(9), (c)(10),
and (c)(18). She added that he was also convicted of other
crimes, thus, further incarceration resulted as well.
MS. WILSON then asked whether the committee really wanted to
say, as a matter of policy, that a rape that occurs after the
victim is supplied with one beer is a more aggravated situation
than what she called a "power rape" where the victim is going
about his/her business but is then snatched away and raped. On
a question raised earlier, she clarified that AS 11.71.170,
Schedule IVA now includes the drug flunitrazepam - rohypnol - as
a controlled substance. In conclusion, she said:
It appears the intent of this legislation, as
Representative Meyer said, [is to] provide the courts
with ... specific language. Unfortunately, this
aggravator ... is not specific; it doesn't say
anything about the perpetrator intending to lower the
inhibitions [of the victim]. It just says,
"supplied".
REPRESENTATIVE JAMES asked Ms. Wilson whether changing the
language [on line 6] to say "in furtherance of the offense"
instead of "in connection with the offense" would be clearer.
MS. WILSON opined that it would make it clearer in terms of
meeting the intent of the sponsor.
REPRESENTATIVE JAMES mentioned that she is assuming that HB 297
would cover situations in which the people involved are of age
to drink alcohol legally, and she opined that since alcohol does
seem to play a part in a lot of "these" crimes, HB 297 somehow
ought to include that specific language.
Number 1834
MS. WILSON noted that there are other "crimes" that already
exist for the act of supplying; thus there is no need to have a
separate aggravator.
CHAIR ROKEBERG asked Ms. Wilson whether passage of HB 297 would
hurt the chances of conviction.
MS. WILSON said it would not because the aggravator doesn't come
into play until after there is a conviction.
REPRESENTATIVE OGAN asked Ms. Wilson whether a person [who]
commits a crime, especially a felony, would have to have a
culpable mental state and, thus, would have to knowingly supply
the alcohol or controlled substance for it to be considered an
aggravator. He also asked whether including language such as
"with the intent to incapacitate" would make her feel better
about HB 297.
MS. WILSON said that it probably would not make her feel any
better about the bill. She continued:
The culpable mental state for [the crime of sexual
assault] is knowingly, and it looks like this is more
geared towards the intentional supplying with the
specific purpose of lowering the inhibitions of the
victim so that [the perpetrator] can commit this
premeditated sexual assault. This aggravator says way
less than that; it's way more broad than that specific
scenario. So, certainly, adding to it specific intent
[language] would make it better.
REPRESENTATIVE BERKOWITZ asked what would happen if the
definition of "dangerous instrument" were expanded to include
alcohol or controlled substances.
MS. WILSON replied: "Oh, I think that's a real slippery slope."
She noted that there are many circumstances where "a dangerous
instrument" is specifically designated for weapons.
REPRESENTATIVE BERKOWITZ then asked Ms. Wilson whether she
thinks that amending AS 12.55.155 to say: "the defendant
knowingly employed [a dangerous instrument,] alcohol, or a
controlled substance in furtherance of the offense" would go
more towards what she feels the intent of HB 297 is.
MS. WILSON replied that it appears to her to do so.
Number 1638
CHAIR ROKEBERG closed public testimony on HB 297, and called an
at-ease from 2:20 p.m. to 2:21 p.m.
REPRESENTATIVE BERKOWITZ remarked that he wished to discuss a
possible amendment. He again asked Ms. Wilson if she felt that
amending AS 12.55.155(c)(4) to include "alcohol or controlled
substance" would satisfy the intent of the sponsor.
MS. WILSON said that such a change seems to better address the
situation. She added, however, that if the victim is
incapacitated or incapable of resisting the perpetrator due to
the consumption of alcohol or drugs, it is already covered by
language in AS 12.55.155(c)(5); thus there is no need to amend
AS 12.55.155(c)(4) nor, in fact, add this aggravator at all,
since current aggravators already cover these types of
situations.
REPRESENTATIVE BERKOWITZ asked what the practical consequence is
of having two aggravators that cover the same conduct.
MS. WILSON explained that they both would apply; they don't
cancel each other out. They both could exist, but just one of
them could be used as a basis to aggravate a sentence up to the
maximum. She added that even under existing AS 12.55.155(c)(5),
the sentence could be aggravated up to the maximum amount of 30
years for sexual assault in the first degree.
REPRESENTATIVE MEYER, notwithstanding the arguments that
existing statutes could be used in place of HB 297, said his
intention is to make it clear that supplying alcohol or drugs to
the victim of a sexual assault could be considered as an
aggravating factor. He noted, however, that he would consider
amending HB 297 in some fashion because testimony has convinced
him that, currently, it is too broad.
[Representative Ogan made a motion to adopt Amendment 1, and
then withdrew his motion at the request of Chair Rokeberg for
the purpose of discussion.]
CHAIR ROKEBERG said that he is extremely uncomfortable with the
"one-beer scenario" that has been raised by several people.
Number 1396
REPRESENTATIVE BERKOWITZ said: "I'm going to offer my amendment
about 'employing alcohol or [a] controlled substance in
furtherance of the offense'."
REPRESENTATIVE MEYER asked whether that would be an amendment to
existing AS 12.55.155(c)(4) or to HB 297's proposed (c)(30).
REPRESENTATIVE BERKOWITZ said, "Either way, it's going to be in
there; I just think it's cleaner [as an amendment to AS
12.55.155(c)(4)]."
CHAIR ROKEBERG remarked that if such a change occurs to HB 297,
all that is being taken from [AS 12.55.155(c)(4)] is the
language "in furtherance of the offense".
REPRESENTATIVE BERKOWITZ agreed but added that he would also
remove from HB 297 any reference to AS 11.41.410 - 11.41.455.
CHAIR ROKEBERG asked whether Representative Berkowitz wanted the
proposed aggravator in HB 297 to apply to all offenses, not just
sexual offenses.
REPRESENTATIVE BERKOWITZ said yes; "I think that that makes
sense." He asked why this aggravator shouldn't also apply to a
homicide in which alcohol was used in furtherance of the crime.
CHAIR ROKEBERG remarked that such a change would probably
generate a fiscal note.
REPRESENTATIVE BERKOWITZ said: "We ought to be doing this based
on the correct policy rather than how much it costs."
REPRESENTATIVE MEYER said that he would prefer to limit the
aggravator in HB 297 to sexual assault offenses.
REPRESENTATIVE BERKOWITZ opined that the language "in
furtherance of the offense" is fairly critical, adding that it
is language that has already been litigated, it is currently in
statute in other places, and it "gets at some of what
Representative Ogan is trying to do."
Number 1249
REPRESENTATIVE OGAN made a motion to adopt Amendment 1, which
read [original punctuation provided]:
Delete lines 4 - 6
Insert new paragraph to read:
(30) the defendant is convicted of an offense
specified in AS 11.41.410 - 11.41.455, and the
defendant knowingly supplied alcohol or a controlled
substance to the victim in the [sic] connection with
the offense with the intent to incapacitate.
Number 1230
CHAIR ROKEBERG made a motion to amend Amendment 1 by deleting
"the [sic] connection with" and inserting "furtherance of".
REPRESENTATIVE OGAN said he would consider this amendment to
Amendment 1 as a friendly amendment and would not object to it.
CHAIR ROKEBERG, in response to questions, opined that the
language "with the intent to incapacitate" in Amendment 1 should
remain because otherwise the language in HB 297 would be too
broad.
REPRESENTATIVE MEYER agreed.
CHAIR ROKEBERG, to clarify, explained that Amendment 1, if
amended, would read:
Delete lines 4 - 6
Insert new paragraph to read:
(30) the defendant is convicted of an offense
specified in AS 11.41.410 - 11.41.455, and the
defendant knowingly supplied alcohol or a controlled
substance to the victim in furtherance of the offense
with the intent to incapacitate.
REPRESENTATIVE JAMES mentioned that that language seems to drag
with "those two phrases."
CHAIR ROKEBERG remarked that "knowingly" relates to "the intent
to incapacitate" and both terms are important.
REPRESENTATIVE BERKOWITZ noted that the "intent to incapacitate"
is different than, for example, the intent to soften someone's
inhibitions. He remarked that the use of "intent to
incapacitate" could engender litigation. He suggested that a
defendant could argue: "I just got her drunk so I could reduce
her inhibitions; I didn't want her incapacitated."
REPRESENTATIVE OGAN mentioned that Ms. Bitzer had used the term
"intent to incapacitate".
CHAIR ROKEBERG suggested that Representative Berkowitz's point
pertains to whether this is a legal term that has been litigated
or defined in statute.
REPRESENTATIVE OGAN noted that "incapacitated" is already
defined in statute.
Number 0997
REPRESENTATIVE JAMES made a motion to amend Amendment 1 a second
time by deleting "with the intent to incapacitate" and having it
end with "in furtherance of the offense."
Number 0930
CHAIR ROKEBERG, after noting that there were no objections to
the first amendment to Amendment 1, stated that it was adopted.
He then stated that the second amendment to Amendment 1 was
before the committee for consideration.
REPRESENTATIVE OGAN objected to the second amendment to
Amendment 1. He again reiterated his concern that HB 297 could
be interpreted to mean that the aggravator would apply to
someone who provides even just a sip of wine or beer. He opined
that if an act does not contribute to a crime in any way, it
should not be considered an aggravator.
REPRESENTATIVE BERKOWITZ remarked that this aggravator would not
apply until the sentencing phase, and has nothing to do with the
defendant's culpability.
REPRESENTATIVE JAMES said that she found out only today that
aggravators apply only at sentencing rather than at trial. She
asked: Don't judges, during trial, make their decisions based
on the presentation of the circumstances, including aggravating
or mitigating factors?
CHAIR ROKEBERG suggested that testimony indicates that the facts
of the case, including the use of drugs or alcohol, do influence
what type of crime a person is convicted of.
REPRESENTATIVE MEYER opined that there is still some confusion
in the courts as to whether the use of alcohol or drugs can be
considered as an aggravating factor.
REPRESENTATIVE BERKOWITZ said he disagrees with that premise.
CHAIR ROKEBERG noted that he wishes to finish working on
Amendment 1 and ultimately see it adopted, and then hold HB 297
over and let the sponsor fine-tune it.
REPRESENTATIVE MEYER said he would work with an attorney
regarding some of the legal issues raised.
REPRESENTATIVE BERKOWITZ asked that the Department of Law be
permitted to give testimony on HB 297 at its next hearing.
Number 0562
CHAIR ROKEBERG brought attention back to the question of whether
to adopt the second amendment to Amendment 1, which would delete
"with the intent to incapacitate." He indicated that he agrees
with Representative Ogan that that language is necessary to keep
HB 297 from being applied too broadly.
REPRESENTATIVE OGAN stated that he is maintaining his objection
to the second amendment to Amendment 1. He opined that to
simply say "supplied", without including "with the intent to
incapacitate", gives no indication as to what amount could be
considered an aggravator. By keeping "with the intent to
incapacitate", he surmised, the aggravator would not apply
unless the perpetrator could be shown to have had "some kind of
culpable mental state."
REPRESENTATIVE JAMES, in defense of the second amendment to
Amendment 1, opined that "in furtherance of the offense" is the
key to this aggravator, but that including "with the intent to
incapacitate", negates it. She said she trusts the court system
to apply this aggravator appropriately.
Number 0174
A roll call vote was taken. Representatives Berkowitz, Kookesh,
and James voted for the second amendment to Amendment 1.
Representatives Ogan, Coghill, Meyer, and Rokeberg voted against
it. Therefore, the second amendment to Amendment 1 failed by a
vote of 3-4.
CHAIR ROKEBERG announced that the committee would hold HB 297
over, and asked Representative Meyer to review HB 297 in light
of the testimony heard today.
REPRESENTATIVE OGAN noted that he is proud to serve on this
committee and that he appreciates its serious deliberations.
CHAIR ROKEBERG said he found it alarming that according to the
sponsor statement for HB 297, a first-time offender of the crime
of sexual assault in the first degree could have his/her
sentence aggravated from eight years up to the maximum of thirty
years.
Number 0005
CHAIR ROKEBERG adjourned the House Judiciary Standing Committee
at 2:45 p.m. [The tape ended just as Chair Rokeberg made this
announcement.]
TAPE 02-6, SIDE A
Number 0001
CHAIR ROKEBERG reconvened the House Judiciary Standing Committee
at 2:48 p.m. for the purpose of addressing the question of
whether to adopt Amendment 1, as amended. Present were
Representatives Rokeberg, Meyer, Coghill, and Ogan.
Number 0070
CHAIR ROKEBERG asked whether there were any objections to
adopting Amendment 1, as amended. There being no objection,
Amendment 1, as amended, was adopted. [HB 297 was held over.]
ADJOURNMENT
Number 0098
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:50 p.m.
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