02/28/2011 01:00 PM House JUDICIARY
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| += | HB 127 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 28, 2011
1:37 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
MEMBERS ABSENT
Representative Lindsey Holmes
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; ASSIGNED TO A SUBCOMMITTEE
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
02/07/11 (H) Heard & Held
02/07/11 (H) MINUTE(JUD)
02/09/11 (H) JUD AT 1:00 PM CAPITOL 120
02/09/11 (H) Heard & Held
02/09/11 (H) MINUTE(JUD)
02/11/11 (H) JUD AT 1:00 PM CAPITOL 120
02/11/11 (H) Scheduled But Not Heard
02/23/11 (H) JUD AT 1:00 PM CAPITOL 120
02/23/11 (H) Heard & Held
02/23/11 (H) MINUTE(JUD)
02/25/11 (H) JUD AT 1:00 PM CAPITOL 120
02/25/11 (H) Scheduled But Not Heard
02/28/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
THOMAS REIKER, Staff
Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the explanation of
Amendment 1 to HB 127, Version M.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 127.
DOUGLAS GARDNER, Director
Legal Services
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As the drafter, responded to questions
during discussion of Amendment 1 to HB 127, Version M.
ACTION NARRATIVE
1:37:24 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:37 p.m. Representatives Gatto, Pruitt,
Thompson, Lynn, and Keller were present at the call to order.
Representative Gruenberg arrived as the meeting was in progress.
HB 127 - CRIMES INVOLVING MINORS/STALKING/INFO
1:37:54 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."
1:38:08 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed committee
substitute (CS) for HB 127, Version 27-GH1840\M, Gardner,
2/24/11, as the working document. There being no objection,
Version M was before the committee.
1:38:50 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 1, labeled
27-GH1840\M.1, Gardner, 2/24/11, which read:
Page 1, line 2, following "minor,":
Insert "criminal impersonation,"
Page 2, following line 31:
Insert a new bill section to read:
"* Sec. 6. AS 11.46.565(a) is amended to read:
(a) A person commits the crime of criminal
impersonation in the first degree if
(1) the person
(A) [(1)] possesses an access device or
identification document of another person;
(B) [(2)] without authorization of the
other person, uses the access device or identification
document of another person to obtain a false
identification document, open an account at a
financial institution, obtain an access device, or
obtain property or services; and
(C) [(3)] recklessly damages the financial
reputation of the other person; or
(2) the person violates AS 11.46.570 and
the crime intended is a sex offense; in this
paragraph, "sex offense" has the meaning given in
AS 12.63.100."
Renumber the following bill sections accordingly.
Page 11, line 16:
Delete "Sections 1 - 12 and 15"
REPRESENTATIVE LYNN, noting that Amendment 1 addresses false
caller identification (ID) technology, relayed that although the
DOL has expressed some concerns about Amendment 1, [the drafter
has indicated his belief] that there might be situations in
which its adoption might make it easier to prosecute someone.
1:40:28 PM
THOMAS REIKER, Staff, Representative Bob Lynn, Alaska State
Legislature, indicated that [by altering AS 11.46.565(a), which
addresses the crime of criminal impersonation in the first
degree,] Amendment 1 would make it a [more serious] crime to use
false caller ID technology, a false "Facebook" account, a false
instant messaging profile, or a false e-mail account in
furtherance of a crime that is a sex offense. Specifically,
under Amendment 1, if a person commits the crime of criminal
impersonation in the second degree as outlined in AS 11.46.570
and does so in furtherance of a sex offense, then he/she could
be charged with the crime of criminal impersonation in the first
degree; existing AS 11.46.570 reads:
(a) A person commits the crime of criminal
impersonation in the second degree if the person
(1) assumes a false identity and does an act in
the assumed character with intent to defraud, commit a
crime, or obtain a benefit to which the person is not
entitled; or
(2) pretends to be a representative of some
person or organization and does an act in the
pretended capacity with intent to defraud, commit a
crime, or obtain a benefit to which the person is not
entitled.
(b) Criminal impersonation in the second degree is a
class A misdemeanor.
MR. REIKER, in response to questions, gave some examples of how
a sexual predator might easily use [the aforementioned types of
technology] to give his/her victims a false sense of security
with regard to who they think they are interacting with.
The committee took an at-ease from 1:46 p.m. to 1:48 p.m.
MR. REIKER, in response to further questions, relayed that under
Amendment 1, committing the crime of criminal impersonation in
the second degree in furtherance of a sex offense would be a
class B felony; that although some of the sex offenses
referenced via Amendment 1 are misdemeanors, whether a
perpetrator would be charged with a violation of Amendment 1's
proposed AS 11.46.565(a)(2) would be at the discretion of the
prosecutor; and that Amendment 1 could provide prosecutors with
another option regarding what they could charge someone with.
REPRESENTATIVE THOMPSON questioned whether the behavior
Amendment 1 is intended to address was already covered under the
statute pertaining to the crime of online enticement of a minor
- AS 11.41.452.
MR. REIKER relayed that the sponsor didn't feel that it was. In
response to another question, he noted that the crime of
criminal impersonation in the second degree is a class A
misdemeanor, and the crime of criminal impersonation in the
first degree is a class B felony, and reiterated that under
Amendment 1, committing the second-degree crime in furtherance
of a sex offense would result in the penalty associated with the
first-degree crime.
REPRESENTATIVE GRUENBERG characterized that as a significant
jump in penalties, and noted that under Amendment 1, the term,
"sex offense" has the meaning given in AS 12.63.100.
1:56:15 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), observed
that AS 12.63.100(6) defines the term, "sex offense" for
purposes of registering as a sex offender. She then read
provisions of AS 12.63.100(6), clarified which specific crimes
were being referenced therein, and responded to questions about
some of those various crimes; AS 12.63.100(6) read:
(6) "sex offense" means
(A) a crime under AS 11.41.100(a)(3), or a
similar law of another jurisdiction, in which the
person committed or attempted to commit a sexual
offense, or a similar offense under the laws of the
other jurisdiction; in this subparagraph, "sexual
offense" has the meaning given in AS 11.41.100(a)(3);
(B) a crime under AS 11.41.110(a)(3), or a
similar law of another jurisdiction, in which the
person committed or attempted to commit one of the
following crimes, or a similar law of another
jurisdiction:
(i) sexual assault in the first degree;
(ii) sexual assault in the second degree;
(iii) sexual abuse of a minor in the first
degree; or
(iv) sexual abuse of a minor in the second
degree; or
(C) a crime, or an attempt, solicitation, or
conspiracy to commit a crime, under the following
statutes or a similar law of another jurisdiction:
(i) AS 11.41.410 - 11.41.438;
(ii) AS 11.41.440(a)(2);
(iii) AS 11.41.450 - 11.41.458;
(iv) AS 11.41.460 if the indecent exposure is
before a person under 16 years of age and the offender
has a previous conviction for that offense;
(v) AS 11.61.125 - 11.61.128;
(vi) AS 11.66.110 or 11.66.130(a)(2) if the
person who was induced or caused to engage in
prostitution was 16 or 17 years of age at the time of
the offense;
(vii) former AS 11.15.120, former 11.15.134, or
assault with the intent to commit rape under former AS
11.15.160, former AS 11.40.110, or former 11.40.200;
or
(viii) AS 11.61.118(a)(2) if the offender has a
previous conviction for that offense;
2:05:12 PM
REPRESENTATIVE THOMPSON surmised that prosecuting someone under
Amendment 1 would be difficult if the person violating
AS 11.46.570 weren't also convicted of one of the aforementioned
sex offenses.
MS. CARPENETI concurred, adding that she couldn't imagine a
circumstance in which it would be possible.
MR. REIKER, in response to comments, elaborated that Amendment 1
is intended to make the underlying criminal impersonation crime
a more serious offense if the person's intent in committing that
crime is to then commit a sex offense. This approach, rather
than narrowing the sex offense statutes themselves to address
false caller ID technology, was taken because the drafter felt
that the use of false caller ID technology was already covered
under the criminal impersonation statutes. In response to a
question, he clarified that the use of false caller ID
technology would only be a crime if the person using that
technology did so with the intent to commit a crime or obtain a
benefit to which he/she was not entitled. He too relayed that
the drafter felt that there might be situations in which the
adoption of Amendment 1 might make it easier to prosecute
someone.
MS. CARPENETI, in response to comments and questions, indicated
that the DOL's concern with Amendment 1 revolves around the fact
that it addresses a property crime that includes a specific
intent to commit a crime against a person. The DOL would have
to prove beyond a reasonable doubt that when the person assumed
the false identity, that he/she intended to commit a sex offense
- a crime against a person. Furthermore, because the crime of
criminal impersonation is a property crime, someone convicted
under Amendment 1 wouldn't be required to register as a sex
offender. Given the problems Alaska has with regard to sexual
assault crimes and sexual abuse of a minor crimes, and given the
[administration's] stance on this issue, prosecuting a sex
offense as a non-sex-offense is not something the DOL would
generally do, because sex offenses are too serious. Also,
because the use of false caller ID technology is already covered
under existing law, in situations where a person uses such
technology in furtherance of a sex offense, the DOL could
already charge the person with both the crime of criminal
impersonation in the second degree, and the underlying sex
offense. Approaching such situations in this manner would avoid
"this kind of crossover of property [crimes] versus sex crimes"
that the DOL is concerned about with Amendment 1.
2:22:24 PM
DOUGLAS GARDNER, Director, Legal Services, Legislative Legal and
Research Services, Legislative Affairs Agency (LAA), speaking as
the drafter of HB 127, in response to questions and comments,
offered his understanding that [the presumptive sentencing
range] for a class B felony offense that isn't a sex offense is
3 to 5 years, with a maximum sentence of 10 years, whereas [the
presumptive sentencing range] for a class B felony sex offense
is 5 to 15 years, with a maximum sentence of 99 years; and that
he could conceive of a situation in which Amendment 1 might be
used instead of the existing sex offense statutes if a
perpetrator [through the use of the aforementioned types of
technology] intends to commit a sex offense but hasn't yet taken
a substantial step towards doing so.
MS. CARPENETI, in response to comments, reiterated that the DOL
has a policy against reducing a sex crime to a crime that isn't
a sex crime, because, again, a convicted perpetrator wouldn't
have to register as a sex offender.
REPRESENTATIVE GRUENBERG suggested that the issues raised by
Amendment 1 be researched further.
[The motion to adopt Amendment 1 was left pending.]
2:35:41 PM
MS. CARPENETI - in response to questions regarding the phrase,
", with the intent to annoy or embarrass another person," as
used in Section 7, on page 3, lines 23-24 - explained that that
phrase addressing the person's culpable mental state was added
to Version M so that proposed AS 11.61.116, establishing the new
crime of sending an explicit image of a minor, wouldn't apply in
situations where someone sends around baby pictures or other
accidentally-explicit depictions.
REPRESENTATIVE GRUENBERG expressed a preference for using the
word, "humiliate" on page 3, line 24, instead of the word,
"embarrass", because the word, "humiliate" would perhaps be a
stronger term for purposes of criminalizing the behavior.
MS. CARPENETI relayed that although her supervisor thinks that
more people understand the word, "embarrass", she thinks he
doesn't feel strongly either way about replacing it with the
word, "humiliate".
CHAIR GATTO suggested instead simply adding the word,
"humiliate" to that phrase.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, to
replace the word, "embarrass" on page 3, line 24, with the word,
"humiliate".
CHAIR GATTO offered his belief that use of the word, "humiliate"
sets a pretty high standard, perhaps too high. He asked whether
such a substitution would be helpful.
MS. CARPENETI indicated that it would be helpful just in terms
of arriving at a compromise. In response to concerns expressed
about the word, "annoy", she pointed out that that term has been
used for a number of years, without problem, in the statutes
pertaining to the crime of harassment; specifically, AS
11.61.120(a) says in part, ", with intent to harass or annoy
another person,".
REPRESENTATIVE GRUENBERG withdrew Amendment 2.
CHAIR GATTO surmised that if the act of annoying a victim is
enough to charge a person under proposed AS 11.61.116, then it
matters not that the person also went so far as to engage in the
act of humiliating the victim.
2:38:15 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3, to
replace the word, "embarrass" on page 3, line 24, with the word,
"harass".
REPRESENTATIVE KELLER objected. He said he didn't consider
using the word, "embarrass", to be a problem regardless that it
might set a standard that could be easily proved. Instead, he
surmised, the problem is going to be in proving the intent of
the person, regardless of which terms are used.
CHAIR GATTO expressed a preference for using the word, "harass",
in that it could provide for an easier threshold to arrive at.
REPRESENTATIVE LYNN questioned, though, whether to "harass"
someone requires a series of actions.
CHAIR GATTO acknowledged that point.
MS. CARPENETI relayed that the word, "humiliate" would be
preferable to the word, "harass" because the phrase, "to annoy
or harass" already constitutes the culpable mental state
required for the crime of harassment, and so it would be good to
make some sort of distinction between the two culpable mental
states. In response to a question, she added that she is merely
concerned that using a phrase in proposed AS 11.61.116(a) so
similar to that used in AS 11.61.120(a) would raise the question
of whether a separate crime is even necessary. The dictionary
definition of the word, "humiliate" is not confusing, she
remarked, and predicted that the courts could apply it without
difficulty. In response to comments and further questions, she
explained that in order for a person to be found guilty of
violating proposed AS 11.61.116, the State would have to prove
that the person intended for his/her behavior to result in a
particular outcome - that being to affect how the victim felt or
how others felt about the victim as a result of the behavior -
regardless of whether that outcome was actually achieved. The
DOL, would prefer that Section 7 retain the phrase, ", with the
intent to annoy or embarrass another person,", but would be
amenable to having the word, "embarrass" changed to the word,
"humiliate".
REPRESENTATIVE GRUENBERG expressed concern that by using the
word, "embarrass", the person could intend to make the victim
feel embarrassed and it would be a crime even though very little
harm to the victim actually occurs. The word, "embarrass" might
be too broad, he concluded.
MS. CARPENETI again relayed that the DOL would be amenable to
having the word, "embarrass" changed to the word, "humiliate".
2:45:11 PM
REPRESENTATIVE GRUENBERG withdrew Amendment 3.
REPRESENTATIVE GRUENBERG remade the motion to adopt Amendment 2,
to replace the word, "embarrass" on page 3, line 24, with the
word, "humiliate".
CHAIR GATTO ventured that in the context of proposed AS
11.61.116 - which would criminalize the act of sending an
explicit image of a minor under the age of 16 - it seems like
almost any word would be suitable.
REPRESENTATIVE LYNN opined that being humiliated is much worse
than merely being annoyed or embarrassed, particularly given
that many [seemingly inconsequential] actions can annoy or
embarrass someone.
MS. CARPENETI, in response to a question, characterized
Amendment 2 as being fine.
REPRESENTATIVE KELLER objected to the motion to adopt
Amendment 2. He questioned whether it would be better to
instead replace the phrase, "annoy or embarrass" with the word,
"harm"; Section 7 would then in part read, ", with the intent to
harm another person,".
MS. CARPENETI said such a change would be concerning because she
wouldn't know what the word, "harm" means in the context of
prosecuting someone for the crime of sending an explicit image
of a minor. It would be better, therefore, to specify what is
meant, as both the current language and Amendment 2 do.
Changing the current language as Amendment 2 proposes would be
easier for the DOL to deal with, she concluded.
REPRESENTATIVE KELLER removed his objection to the motion to
adopt Amendment 2.
CHAIR GATTO, noting that there were no further objections,
announced that Amendment 2 was adopted.
CHAIR GATTO, observing that more work on both the bill and
Amendment 1 was warranted, assigned HB 127 [Version M] to a
subcommittee chaired by Representative Gruenberg.
2:51:43 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:51 p.m.
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