02/07/2011 01:00 PM House JUDICIARY
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| HB127 | |
| Adjourn |
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| *+ | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 7, 2011
1:02 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act relating to the crimes of stalking, online enticement of
a minor, unlawful exploitation of a minor, endangering the
welfare of a child, sending an explicit image of a minor,
harassment, distribution of indecent material to minors, and
misconduct involving confidential information; relating to
probation; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 127
SHORT TITLE: CRIMES INVOLVING MINORS/STALKING/INFO
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/26/11 (H) READ THE FIRST TIME - REFERRALS
01/26/11 (H) JUD, FIN
02/07/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOHN J. BURNS, Acting Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Introduced HB 127 on behalf of the
administration.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Explained the provisions of HB 127 and
responded to questions.
DEREK DeGRAAF, Sergeant, Supervisor
Technical Crimes Unit (TCU)
Alaska Bureau of Investigation (ABI)
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 127.
ACTION NARRATIVE
1:02:27 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:02 p.m. Representatives Gatto, Pruitt,
Thompson, Holmes, and Keller were present at the call to order.
Representatives Gruenberg and Lynn arrived as the meeting was in
progress.
HB 127 - CRIMES INVOLVING MINORS/STALKING/INFO
1:02:51 PM
CHAIR GATTO announced that the only order of business would be
HOUSE BILL NO. 127, "An Act relating to the crimes of stalking,
online enticement of a minor, unlawful exploitation of a minor,
endangering the welfare of a child, sending an explicit image of
a minor, harassment, distribution of indecent material to
minors, and misconduct involving confidential information;
relating to probation; and providing for an effective date."
1:04:46 PM
JOHN J. BURNS, Acting Attorney General, Department of Law (DOL)
- noting that children in Alaska are sexually abused six times
more often than the national average and that women in Alaska
are raped two and one-half times more often than the national
average - explained that HB 127 [primarily] addresses [sexual]
exploitation of a minor crimes and stalking crimes. House
Bill 127 expands the crime of [stalking in the second degree] by
amending the definition of the term, "nonconsensual contact" to
include the use of a global positioning device to follow or
monitor a victim, or the installation or attempted installation
of a device that observes, records, or photographs events in the
home, workplace, or vehicle of a victim, or on a victim's
personal telephone or computer; this proposed change reflects
that these types of technology are being used to commit
[stalking] crimes. House Bill 127 would also make it a crime to
publish or distribute a sexually explicit image of a minor; and
make it a crime to, without legal authority or consent,
knowingly obtain confidential information about another person.
In conclusion, he said that the objective of HB 127 is
consistent with efforts to eradicate sexual assault and domestic
violence (DV) [in Alaska].
1:08:59 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), referring
to the sectional analysis of HB 127 included in members'
packets, concurred that Section 1 would expand the definition of
the term, "nonconsensual contact" for purposes of Alaska's
stalking statute. A person commits the crime of stalking if
he/she engages in a course of conduct that recklessly places
another person in fear of death or physical injury, and the
term, "course of conduct" is defined as repeated acts of
nonconsensual contact with the victim. Section 1 is proposing
to add to AS 11.41.270(b)(3) [two new subparagraphs]:
(H) following or monitoring that person with a global
positioning device or similar technological means;
(I) using, installing, or attempting to use or install
a device for observing, recording, or photographing
events occurring in the residence, vehicle, or
workplace of that person, or on the personal telephone
or computer of that person;
MS. CARPENETI then explained that Section 2 is proposing to add
to AS 11.41.270(b) a definition of the term, "device" in order
to clarify that that term includes software. In response to
questions, she indicated that she would research whether
proposed AS 11.41.270(b)(3)(I) would also include software that
enables a perpetrator to track a victim's computer keystrokes;
assured the committee that [Sections 1 and 2] pertain to the
crime of stalking, not to parents monitoring what their minor
children are doing on the computer; and explained that for
drafting purposes, the phrase "of that person" - as used in
proposed AS 11.41.270(b)(3)(1) - is used when prohibiting one
person from behaving in a particular way in relation to another
person.
REPRESENTATIVE HOLMES questioned whether proposed AS
11.41.270(b)(3)(I) would apply in situations where the computer,
residence, or vehicle is owned by someone other than the person
being stalked.
MS. CARPENETI said she considers that it would apply but
acknowledged that it wouldn't hurt to clarify that issue in the
bill.
REPRESENTATIVE GRUENBERG relayed that he would be providing the
DOL with a list of questions in writing.
1:16:11 PM
MS. CARPENETI went on to explain that Section 3 would raise the
penalty for the crime of online enticement of a minor, from a
class C felony to a class B felony, and that Section 4 would
raise the penalty for that same crime when committed by someone
[already] required to register as a sex offender or child
kidnapper, from a class B felony to a class A felony. She
added:
This has significant impact on the potential penalty
that a person may be sentenced to who was convicted of
these crimes, because the bill, also, in Section 12,
adds these crimes to those sex offenses in Title 12
... that are given elevated sentences, and that's
found in AS 12.55.125(i), which is a particular
section just for sex offenses.
MS. CARPENETI surmised that [Section 12] is merely correcting an
oversight, that the crimes of online enticement of a minor
should be included in that sentencing statute. Sections 3 and 4
propose significant changes to the penalties for such crimes,
which are seriously harmful to children, constitute classic
grooming behavior, are seriously predatory, lead to even more
serious offenses against children, and thus warrant the proposed
increase in penalties. In response to questions and comments,
she agreed to research how Alaska compares to other states, and
what the new [presumptive] sentencing ranges would be; ventured
that Alaska is behind the federal government in addressing this
issue; and offered her understanding that in any given year, the
DOL doesn't prosecute very many people for online enticement of
a minor crimes.
1:23:22 PM
MS. CARPENETI then explained that Section 5 would change the
penalty for the crime of unlawful exploitation of a minor -
which occurs during the making of child pornography - such that
all offenders would be subject to a class A felony. Under
current law, only repeat offenders are subject to a class A
felony, and first-time offenders are subject to only a class B
felony. This conduct is really serious, she opined, and thus
it's entirely justified for all such offenses to be class A
felonies. She noted, though, that the Division of Juvenile
Justice (DJJ) has expressed interest in removing this particular
offense from the automatic-waiver-into-adult-court provisions
located in Title 47, and so the DOL has prepared an amendment to
that effect, agreeing with the DJJ on this issue. In response
to comments, she assured the committee that the making of child
pornography is not protected by the First Amendment.
MS. CARPENETI explained that Section 6 addresses the crime of
endangering the welfare of a child in the first degree;
specifically, Section 6 would add those required to register as
a child kidnapper to AS 11.51.100(a)(2), the list of those
people with whom a person may not leave a child. Existing AS
11.51.100(a)(2) already includes those required to register as a
sex offender, and so Section 6 is merely cleaning up that
provision. In response to a question, she noted that this
provision would not - and does not now - apply to those who are
a parent, guardian, or lawful custodian of the child.
REPRESENTATIVE KELLER asked why this provision would only apply
in situations where the child is under the age of 16.
MS. CARPENETI surmised that it's because 16 is the age of
consent in Alaska. In response to other questions, she relayed
that the penalty for the crime of endangering the welfare of a
child is dependent upon the facts of the particular case, such
as [where and with whom the child was left and] what harm was
done to the child; that the DOL has attempted to make the
crimes/penalties listed in Title 11 consistent with each other,
though there may still be some discrepancies; that depending on
the facts of the particular case, the DOL might be able to
prosecute a person for a crime other than that of endangering
the welfare of a child in the first degree; that the DOL doesn't
feel that any other changes to AS 11.51.100 are warranted -
again, Section 6 is intended as a cleanup provision; that the
DOL doesn't consider AS 11.51.100 to be too broad, particularly
given that the DOL retains prosecutorial discretion; and that
whether someone would be prosecuted under AS 11.51.100 for
leaving a child in a library would depend on the specific facts
of the case.
REPRESENTATIVE GRUENBERG offered his belief that existing AS
11.51.100(a)(2)(B)-(C) warrants revision to address those who
were charged a long time ago and those whose charges were later
dismissed.
MS. CARPENETI agreed to research that issue further and perhaps
provide a clarifying amendment regarding [those whose charges
were dismissed].
1:37:29 PM
MS. CARPENETI then explained that Section 7 - which would add a
new crime under proposed AS 11.61.116 - addresses a concern
that's come up in recent years regarding the electronic sending
of explicit images of minors under the age of 16; specifically,
Section 7 would make it a crime to publish or distribute an
electronic or printed photograph, picture, or film that depicts
the genitals, anus, or female breast of a minor under the age of
16. However, Section 7 would not apply in situations involving
the sending of lewd images of children [under the age of 16],
since such child pornography is already covered under AS
11.41.455 - unlawful exploitation of a minor. This is a
difficult issue to address, she observed, because the goal would
be to just have a law that applies in situations where sexual
predators are using explicit images in a way that further abuses
their victims, but not in situations where children have
foolishly sent explicit images of themselves to their
boyfriend/girlfriend.
MS. CARPENETI relayed that Section 7's proposed language
attempts to reach a balance by prohibiting the sending of an
explicit image of a minor without the consent of the minor's
parent, but not the sending by a minor of his/her own explicit
image. Nothing in this provision would allow a child to consent
to the sending of his/her explicit image by someone else, since
in Alaska, a minor under the age of 16 cannot give consent; a
child under the age of 16 is not capable of making a mature
decision about his/her explicit image that may end up on the
Internet for the rest of his/her life. The penalty provided for
in Section 7, therefore, is based on the harm that could result
from the transmission of such images; it would be a class B
misdemeanor [if the explicit image was sent to one or two other
people, a class A misdemeanor if it was sent to three or more
other people,] and a class C felony if it was [posted] on the
Internet.
CHAIR GATTO noted that Section 7 uses the phrase, "electronic or
printed photograph, picture, or film", and asked whether these
terms were duplicative.
MS. CARPENETI explained that although that might be the case,
that language was taken from the unlawful exploitation of a
minor statute, and has the added benefit of having already been
interpreted by the courts, and of already having been defined in
other statutes. In response to comments and further questions,
she assured the committee that Section 7 would not apply to the
sending of text - regardless of how graphic - adding that it
would be very difficult to draft statutory language defining
what, exactly, would be prohibited without also raising First
Amendment concerns. Again, Section 7 is limited to the sending
of explicit images of children under the age of 16; such images
are not constitutionally protected.
RESENTATIVE HOLMES, referring to the term, "female breast" as
used in Section 7, said she would not want this provision to
apply in situations where a person sends around pictures of a
kids' birthday party, for example, that include a female
baby/toddler without a shirt on, or pictures that include a
teenage girl in a low-cut top. She asked how that term would be
interpreted; for example, at what age would a female child be
considered to have breasts, and how much of the female breast
must be showing in the image in order for Section 7 to apply.
1:44:13 PM
MS. CARPENETI indicated that Section 7's exception for the
sending of explicit images with the child's parent [or legal
guardian's] consent might address situations such as in the
kids' birthday party example, and relayed that although the
statutes don't further define the term, "female breast", there
have been some court decisions on the matter which she would
provide to the committee. In response to another question, she
said that Section 7 would not apply to an image of a girl in a
wet top because, although it might be revealing, the girl would
still be clothed. With regard to what culpable mental state
would be required under Section 7, she explained that the DOL
would have to prove that a person knowingly distributed the
image with reckless disregard that it was of a minor under 16
years of age.
MS. CARPENETI, in response to further questions, said she is not
aware of any federal-supremacy, treaty, interstate-commerce, or
international-commerce issues raised by Section 7, and posited
that as a practical matter, there probably wouldn't be,
particularly given that Alaska's courts have already held, and
Alaska's statutes already provide, that if a person's acts
occurring outside the state cause harm to a victim in the state,
then the State of Alaska has jurisdiction over the person and
could prosecute him/her. [Section 11 of HB 127] merely
clarifies that point [with regard to the crimes outlined in
proposed AS 11.41.452 - online enticement of a minor - and
proposed AS 11.61.116 - sending an explicit image of a minor],
though it won't ensure that the perpetrator can be found or that
it would be practical to prosecute him/her, but it does allow
for prosecution by the state. Additionally, if there are
similar crimes under federal law, then both jurisdictions could
prosecute the person for the offense.
1:52:17 PM
MS. CARPENETI went on to explain that Section 8 would make a
conforming change to AS 11.61.120(a)(6) to clarify that behavior
constituting a crime under Section 7's proposed AS 11.61.116 is
different than behavior constituting a crime under AS 11.61.120
- harassment in the second degree. Section 9 would amend the
statute pertaining to the crime of distribution of indecent
materials to minors - AS 11.61.128 - to clarify that the person
distributing the material must know that it depicts the
prohibited conduct, and to clarify that if the minor to whom the
material was sent is under 16 years of age, that the person was
reckless with regard to that fact. Section 9's proposed changes
essentially spell out the culpable mental state required for the
crime of distribution of indecent materials to minors, and are
intended to address issues raised in federal court in American
Booksellers Foundation for Free Expression (ABFFE) v. Sullivan
[now known as ABFFE v. Burns], and the DOL is expecting that
[the plaintiffs] are going to be suggesting further changes to
AS 11.61.128, which the DOL believes is constitutional as is.
MS. CARPENETI indicated that Section 10 would create two new
misdemeanor crimes: proposed AS 11.76.113 - misconduct
involving confidential information in the first degree, a class
A misdemeanor; and proposed AS 11.76.115 - misconduct involving
confidential information in the second degree, a class B
misdemeanor. A person would commit the second degree offense if
he/she knowingly obtains confidential information about another
person without either the legal authority to do so or the
consent of the other person, and a person would commit the first
degree offense if he/she commits the second degree offense with
the intent to use that information to commit a crime, [or to
obtain a benefit he/she is not entitled to, or to injure another
person, or to deprive another person of a benefit]. [Proposed
AS 11.76.115(b) defines the term, "confidential information" as
including] information that has been classified confidential by
law - such as information about minors, tax information,
information dealing with trade secrets, and medical information
- and information encoded on an access device, [on an
identification (ID) card issued under AS 18.65.310,] or on a
driver's license. She mentioned that new technology has enabled
people to access the information encoded on various access
devices, ID cards, and licenses and then use that information to
commit property crimes.
REPRESENTATIVE GRUENBERG noted that language on page 5, line 25,
contains a typographical error in that the word "if" should
instead be the word "of" in proposed AS 11.76.115(a).
MS. CARPENETI concurred. In response to comments, she noted
that sometimes businesses will ask for a customer's driver's
license for no apparent reason, and then run it through a device
and obtain the information encoded on it, and she opined that
businesses shouldn't be doing that unless they first obtain the
customer's consent. In response to a question, she shared her
belief that HB 127 doesn't violate the single subject rule.
2:02:21 PM
MS. CARPENETI again explained that Section 11 clarifies that the
State of Alaska would have jurisdiction to prosecute people who
aren't in Alaska but who commit the crime of online enticement
of a minor, or the crime of sending an explicit image of a
minor, in situations where the minor was in Alaska when the
offense took place. In response to questions, she reiterated
that when the state and federal government have similar crimes,
then both jurisdictions could choose to prosecute the person for
the offense, depending on the circumstances, though it may not
be practical to do so or possible to find the perpetrator; and
relayed that in terms of jurisdiction over criminal matters, a
lot of Alaska's criminal statutes are driven by policy, not
necessarily by the constitution.
REPRESENTATIVE GRUENBERG questioned why no other crimes were
included in Section 11.
MS. CARPENETI indicated that although the DOL definitely doesn't
want to limit any jurisdiction that Alaska may have over any
Internet crimes, it felt that it was important to clarify the
issue for those two specific crimes. Section 11, though, also
states, "This jurisdiction is in addition to any other
jurisdictional basis expressed or implied in law".
REPRESENTATIVE GRUENBERG indicated interest in expanding
Section 11 such that it would also address distribution crimes
and conspiracy crimes committed against minors, and interest in
expanding the conspiracy statutes such that they would address
some of the crimes against minors outlined in the bill.
REPRESENTATIVE LYNN expressed interest in adding a provision to
HB 127 that would address situations in which false caller ID is
used in the commission of a crime against a minor.
MS. CARPENETI agreed to research those issues further.
2:11:09 PM
MS. CARPENETI explained that Section 12 would change the
sentencing provisions in Title 12 to reflect the bill's proposed
changes [via Sections 3, 4, and 5] to the penalties for the
crimes of unlawful exploitation of a minor and online enticement
of a minor. Section 13 would clarify for the courts that the
commissioner of the Department of Corrections (DOC) may, but is
not required to, provide active supervision to persons placed on
probation for certain misdemeanor offenses; currently, active
supervision is not generally provided for misdemeanor offenders.
In response to questions and comments, she indicated that
Section 13 would address situations involving the DOC's pilot
Probationer Accountability with Certain Enforcement (PACE)
program; and clarified that under current law, the DOC cannot
provide active supervision for an offender unless he/she has
been placed on probation, that the judge is the only one who can
place an offender on probation, and that Section 13, regardless
that it is repealing and reenacting AS 33.05.020(a), wouldn't
change that.
REPRESENTATIVE GRUENBERG, referring to Section 15, asked why
July 1, 2011, was chosen as the effective date.
MS. CARPENETI relayed that when crafting criminal laws, the DOL
tries to provide a specific effective date in order to give
those who must deal with the new laws time to become familiar
with them, and so generally chooses July 1 since that's a
reasonable amount of time after the legislative session has
ended for the DOL to get the word out. Without a specific
effective date, it can be confusing for law enforcement to keep
track of when particular laws go into effect.
2:21:15 PM
DEREK DeGRAAF, Sergeant, Supervisor, Technical Crimes Unit
(TCU), Alaska Bureau of Investigation (ABI), Division of Alaska
State Troopers, Department of Public Safety (DPS), said that
just in the past year, he has seen examples of all the crimes
outlined in the bill occurring throughout Alaska. Some of the
crimes have occurred in rural areas and others have occurred in
urban areas. Because of the technical nature of some of these
crimes, the TCU has statewide jurisdiction and thus can
supplement local law enforcement investigations into such
crimes. On the issue of devices that can track a victim's
keystrokes, he relayed that [the TCU] believes that the language
proposed in the bill is sufficient to address such devices,
whether they are software devices or hardware devices. In
response to questions, he surmised that in rural communities, it
could well be that VPSOs would be the first responders to the
crimes outlined in the bill, and then the TCU would be
contacted, and that as the VPSO program is expanded, the more
success there will be in reporting, identifying, and
investigating such crimes.
CHAIR GATTO surmised that more reporting will lead to fewer
offenses occurring.
MR. DeGRAAF, in response to a question, indicated that the
changes proposed via Section 7 of HB 127 fall in line with laws
in other states, and that over the past couple of years, law
enforcement offices in Alaska have been receiving many reports
of people - often minors - sending explicit images of other
minors. He opined that Section 7's proposed language strikes a
fair balance between those who engage in such activity with bad
intentions and those who do so as part of a joke. In response
to comments and another question, he pointed out that in many of
the cases he is familiar with, although the activity may have
started out as part of a joke, it quickly progressed beyond that
and became very harmful to the minors involved. Currently,
[without passage of HB 127] not much can be done in such cases
because there is no criminal statute in place addressing this
behavior.
CHAIR GATTO expressed an interest in receiving suggestions for
statutory changes that could further assist law enforcement in
protecting Alaska's children. In conclusion, he announced that
HB 127 would be held over.
2:31:12 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:31 p.m.