Legislature(1997 - 1998)

04/28/1998 02:09 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 28, 1998                                              
                     2:09 p.m.                                                 
MEMBERS PRESENT                                                                
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
MEMBERS ABSENT                                                                 
All members present                                                            
COMMITTEE CALENDAR                                                             
CS FOR SENATE BILL NO. 242(FIN)                                                
"An Act providing for the forfeiture of good time sentence credits             
of sex offenders who fail to successfully complete sex offender                
treatment programs."                                                           
     - MOVED CSSB 242(FIN) OUT OF COMMITTEE                                    
CS FOR SENATE BILL NO. 323(FIN) am                                             
"An Act relating to sexual offenses, to those who commit sexual                
offenses, and to registration of sex offenders; amending Rule                  
6(r)(2), Alaska Rules of Criminal Procedure; and providing for an              
effective date."                                                               
     - HEARD AND HELD                                                          
HOUSE BILL NO. 452                                                             
"An Act relating to registration, disclosures, and reports by                  
certain nonprofit corporations."                                               
     - SCHEDULED BUT NOT HEARD                                                 
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL:  SB 242                                                                  
SPONSOR(S): SENATOR(S) WARD, Taylor, Lincoln, Kelly, Duncan,                   
Pearce, Sharp, Mackie, Donley                                                  
Jrn-Date    Jrn-Page           Action                                          
 1/16/98      2217     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 1/16/98      2217     (S)  JUD, FIN                                           
 1/26/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 1/27/98      2317     (S)  JUD RPT    2DP 1NR                                 
 1/27/98      2317     (S)  DP: TAYLOR, MILLER  NR: PEARCE                     
 1/27/98      2317     (S)  FISCAL NOTE (COR)                                  
 1/27/98      2317     (S)  ZERO FISCAL NOTES (ADM-2)                          
 4/02/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/03/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/06/98      3156     (S)  FIN RPT  CS  5DP          SAME TITLE               
 4/06/98      3156     (S)  DP:  PEARCE, SHARP, PHILLIPS,                      
 4/06/98      3156     (S)  PARNELL, DONLEY                                    
 4/06/98      3156     (S)  ZERO FN (COR)                                      
 4/06/98      3156     (S)  PREVIOUS ZERO FNS APPLY (ADM-2)                    
 4/07/98               (S)  RLS AT 11:25 AM FAHRENKAMP RM 203                  
 4/07/98               (S)  MINUTE(RLS)                                        
 4/07/98      3180     (S)  RULES TO CALENDAR  4/7/98                          
 4/07/98      3180     (S)  READ THE SECOND TIME                               
 4/07/98      3180     (S)  FIN  CS ADOPTED UNAN CONSENT                       
 4/07/98      3181     (S)  ADVANCED TO THIRD READING UNAN                     
 4/07/98      3181     (S)  READ THE THIRD TIME  CSSB 242(FIN)                 
 4/07/98      3181     (S)  COSPONSOR(S): LINCOLN, KELLY, DUNCAN,              
 4/07/98      3181     (S)  PEARCE, SHARP, MACKIE, DONLEY                      
 4/07/98      3181     (S)  PASSED Y18 N- E1 A1                                
 4/07/98      3182     (S)  TAYLOR  NOTICE OF RECONSIDERATION                  
 4/07/98      3182     (S)  RECON TAKEN UP SAME DAY  UNAN CONSENT              
 4/07/98      3182     (S)  PASSED ON RECONSIDERATION Y19 N- E1                
 4/07/98      3184     (S)  TRANSMITTED TO (H)                                 
 4/08/98      2920     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/08/98      2920     (H)  JUDICIARY, FINANCE                                 
 4/23/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/23/98               (H)  MINUTE(JUD)                                        
 4/28/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
BILL:  SB 323                                                                  
SPONSOR(S): SENATOR(S) PEARCE, Taylor, Lincoln, Kelly, Donley,                 
Miller, Green                                                                  
Jrn-Date    Jrn-Page           Action                                          
 2/16/98      2529     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 2/16/98      2529     (S)  JUD, FIN                                           
 3/11/98               (S)  JUD AT  1:45 PM BELTZ ROOM 211                     
 3/11/98               (S)  MINUTE(JUD)                                        
 3/12/98      2842     (S)  JUD RPT  CS  3DP 2NR      SAME TITLE               
 3/12/98      2842     (S)  DP: TAYLOR, MILLER, PEARCE                         
 3/12/98      2842     (S)  NR: ELLIS, PARNELL                                 
 3/12/98      2842     (S)  FISCAL NOTE TO SB (COR)                            
 3/12/98      2842     (S)  INDETERMINATE FN TO SB (ADM)                       
 3/12/98      2848     (S)  COSPONSOR: TAYLOR                                  
 3/24/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 3/25/98               (S)  RLS AT 12:55 PM FAHRENKAMP RM 203                  
 3/25/98               (S)  MINUTE(RLS)                                        
 3/25/98      2988     (S)  FIN RPT  CS  4DP 2NR       SAME TITLE              
 3/25/98      2988     (S)  DP: PEARCE, SHARP, PHILLIPS,                       
 3/25/98      2988     (S)  NR: DONLEY, ADAMS                                  
 3/25/98      2988     (S)  PREVIOUS FN  (CORR)                                
 3/25/98      2988     (S)  PREVIOUS INDETERMINATE FN (ADM)                    
 3/26/98      3008     (S)  RULES TO CALENDAR  3/26/98                         
 3/26/98      3010     (S)  READ THE SECOND TIME                               
 3/26/98      3010     (S)  FIN  CS ADOPTED UNAN CONSENT                       
 3/26/98      3010     (S)  ADVANCED TO THIRD READING UNAN                     
 3/26/98      3010     (S)  READ THE THIRD TIME  CSSB 323(FIN)                 
 3/26/98      3010     (S)  COSPONSOR(S): LINCOLN, KELLY, DONLEY,              
 3/26/98      3010     (S)  MILLER, GREEN                                      
 3/26/98      3011     (S)  PASSED Y16 N- E4                                   
 3/26/98      3011     (S)  COURT RULE(S) SAME AS PASSAGE                      
 3/26/98      3011     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 3/26/98      3011     (S)  KELLY  NOTICE OF RECONSIDERATION                   
 3/26/98      3011     (S)  RECON TAKEN UP SAME DAY  UNAN CONSENT              
 3/26/98      3011     (S)  HELD ON RECONSIDERATION TO 3/30                    
 3/30/98      3050     (S)  RECON TAKEN UP - IN THIRD READING                  
 3/30/98      3050     (S)  RETURN TO SECOND FOR AM 1  UNAN                    
 3/30/98      3050     (S)  AM NO  1     ADOPTED UNAN CONSENT                  
 3/30/98      3051     (S)  AUTOMATICALLY IN THIRD READING                     
 3/30/98      3051     (S)  RETURN TO SECOND FOR AM 2  UNAN                    
 3/30/98      3051     (S)  AM NO  2     ADOPTED UNAN CONSENT                  
 3/30/98      3052     (S)  AUTOMATICALLY IN THIRD READING                     
 3/30/98      3053     (S)  PASSED ON RECONSIDERATION Y20 N-                   
 3/30/98      3053     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 3/30/98      3053     (S)  COURT RULE(S) SAME AS PASSAGE                      
 3/30/98      3055     (S)  TRANSMITTED TO (H)                                 
 3/31/98      2807     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/31/98      2807     (H)  JUDICIARY, FINANCE                                 
 4/28/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
WITNESS REGISTER                                                               
CRAIG JOHNSON, Legislative Administrative Assistant                            
   to Senator Jerry Ward                                                       
Alaska State Legislature                                                       
Capitol Building, Room 423                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4921                                                     
POSITION STATEMENT:  Presented CSSB 242(FIN) on behalf of sponsor.             
JAYNE ANDREEN, Executive Director                                              
Council on Domestic Violence and Sexual Assault                                
Department of Public Safety                                                    
P.O. Box 111200                                                                
Juneau, Alaska  99811-1200                                                     
Telephone:  (907) 465-4356                                                     
POSITION STATEMENT:  Testified in support of CSSB 242(FIN) and                 
                     CSSB 323(FIN) am.                                         
LAUREE HUGONIN, Director                                                       
Alaska Network on Domestic Violence and Sexual Assault                         
130 Seward, Room 501                                                           
Juneau, Alaska  99801                                                          
Telephone:  (907) 586-3650                                                     
POSITION STATEMENT:  Testified in support of CSSB 242(FIN).                    
KRISTY TIBBLES, Researcher                                                     
  for Senator Drue Pearce                                                      
Alaska State Legislature                                                       
Capitol Building, Room 518                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4747                                                     
POSITION STATEMENT:  Presented CSSB 323(FIN) am on behalf of                   
GLEN KLINKHART                                                                 
Anchorage Police Department                                                    
1901 Jarvis Avenue                                                             
Anchorage, Alaska 99515                                                        
Telephone:  Not provided                                                       
POSITION STATEMENT:  Testified in support CSSB 323(FIN) am,                    
                     and answered questions pertaining to                      
                     the legislation.                                          
DEAN GUANELI, Chief Assistant Attorney General                                 
Legal Services Section - Juneau                                                
Criminal Division                                                              
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska 99811-0300                                                      
Telephone:  (907) 465-3428                                                     
POSITION STATEMENT:  Answered questions on CSSB 323(FIN) am.                   
ACTION NARRATIVE                                                               
TAPE 98-75, SIDE A                                                             
Number 0001                                                                    
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 2:09 p.m.  Members present at the call to order            
were Representatives Green, Bunde, Porter and James.                           
Representatives Rokeberg and Croft arrived at 2:10 p.m., and                   
Representative Berkowitz arrived at 2:11 p.m.                                  
CHAIRMAN GREEN announced the first item of business would be CSSB
242(FIN), "An Act providing for the forfeiture of good time                    
sentence credits of sex offenders who fail to successfully complete            
sex offender treatment programs."                                              
Number 0059                                                                    
CRAIG JOHNSON, Legislative Administrative Assistant to Senator                 
Jerry Ward, Alaska State Legislature, presented the bill on behalf             
of the sponsor, extending Senator Ward's apology for being unable              
to attend because of another committee meeting.  Mr. Johnson                   
explained that SB 242 calls for the forfeiture of good time credits            
for those who do not complete their court-ordered treatment                    
programs for sexual offenses; those credits can be for up to one-              
third of a sentence for people who are "model citizens" during                 
their prison terms.  He said it is a simple bill that will cause               
people to take their training.                                                 
Number 0130                                                                    
REPRESENTATIVE BRIAN PORTER asked if there is any way a prisoner               
can try but fail.                                                              
MR. JOHNSON said the Senate had reviewed this program as part of               
its outcome-based budgeting.  They have asked the department to                
look more aggressively at how it measures success and monitors                 
this, and they expect that in the future.  However, attendance is              
the measuring stick now; if prisoners don't attend, they don't                 
Number 0226                                                                    
REPRESENTATIVE CON BUNDE said successful completion would be                   
difficult to judge as to whether any behavior had been modified.               
MR. JOHNSON agreed.  He told members this began the previous year              
in the Senate, with the creation of a study of cultural relevance              
for inmates.  One criticism of this bill is that it discriminates              
against Natives because the training is not necessarily geared to              
them.  Mr. Johnson said this past week, the Department of                      
Corrections had completed a training program for all of their                  
people involved in these types of programs, and they are starting              
to address culturally relevant issues; that is the first step.  The            
second step is that they found in their study that since 1997,                 
there has been a zero recidivism rate for the 400 or so that have              
successfully completed this training.  Mr. Johnson concluded, "So              
once we have the program addressing those that need it, the program            
works.  The third part of that equation is, 'Now get people in the             
program.'  And that is what this legislation does."                            
Number 0342                                                                    
REPRESENTATIVE ERIC CROFT expressed concern about someone who fails            
to complete a first program but completes a second.  He pointed out            
that page 1, line 9, says fails to successfully complete a program.            
MR. JOHNSON replied that passing or failing is pretty much at the              
discretion of the commissioner.  At this point, attending a program            
is success.  Therefore, if a prisoner was ordered to take a program            
and took three programs but only graduated from one, the                       
commissioner could deem that as success.  He said ultimately, the              
success of this type of program is whether a prisoner is back in               
jail; a prisoner must be released before success can be determined.            
Number 0544                                                                    
REPRESENTATIVE CROFT said it seems that part of the difficulty is              
it is phrased in the negative, but he isn't sure yet which way it              
should read.                                                                   
Number 0596                                                                    
REPRESENTATIVE NORMAN ROKEBERG inquired about the current status of            
the sex offender rehabilitation program, given the conversion of               
Hiland Mountain Correctional Center to a women's facility.  He said            
that is where the primary sex offender program was in place.  He               
asked what the Department of Corrections is doing about that.                  
MR. JOHNSON replied that there are programs in several of the                  
institutions now, including Lemon Creek Correctional Center and the            
Palmer Correctional Center.  He said they are looking at expanding             
those facilities to house the treatment programs.                              
Number 0650                                                                    
REPRESENTATIVE ROKEBERG said the inability of the department to                
provide the programs should not be an impediment to this.                      
MR. JOHNSON replied, "And it isn't."  He referred committee members            
to lines  11 and 12, which read, "by the commissioner and the                  
program has been made available to the prisoner by the department."            
He said this bill would not affect a model prisoner in a situation             
where a program was not available.                                             
Number 0692                                                                    
REPRESENTATIVE BUNDE said he reads "a program" to mean simply a                
program, not a specific program in a series of offerings, and if a             
person used bits and pieces but completed what is considered a sex             
offender program, that would suffice.                                          
CHAIRMAN GREEN concurred with that reading.                                    
Number 0730                                                                    
REPRESENTATIVE JEANNETTE JAMES said it seems to be defined by the              
one program that the person is ordered to participate in, and there            
is already a definition somewhere that says what the prisoners are             
supposed to do.  She said she feels comfortable with it, noting the            
testimony that just attending means successful completion.                     
Number 0774                                                                    
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and            
Sexual Assault, Department of Public Safety, came forward and                  
stated support for SB 242.  She told members, "As people know,                 
Alaska has one of the highest rates of sexual assault in the                   
nation, and sex offenders are one of the toughest groups of                    
offenders to rehabilitate.  We know that we can't cure sex                     
offenders.  At the very best - very best - they can be ... taught              
to control their violent impulses.  We think that this bill adds to            
the tools that the Department of Corrections, as well as the state             
of Alaska, has in holding offenders accountable for meeting the                
requirements of their sentence, and we fully support it."                      
Number 0800                                                                    
REPRESENTATIVE ETHAN BERKOWITZ asked whether there is enough                   
program space to accommodate all the offenders currently.                      
MS. ANDREEN said she doesn't know, but she knows that the                      
Department of Corrections has a couple of programs available in the            
facilities.  In the past, there has been a waiting list; she said              
she would defer to the department to address that.                             
Number 0843                                                                    
REPRESENTATIVE CROFT referred to AS 33.16.220, revocation of                   
parole, and noted that the board may revoke parole if the person               
has violated an order to participate in or comply with the                     
treatment plan.  He said there is a "may" for everybody else, but              
it is mandatory for sex offenders.  That may make sense, but it is             
not really adding a new tool so much as making it mandatory for a              
specific crime where there is a high recidivism rate and a tough               
rehabilitation task.  He asked whether that is accurate.                       
Number 0889                                                                    
MS. ANDREEN said that would also have to be deferred to the                    
Department of Corrections.  She added, "My understanding is that if            
the court orders that an offender complete a program, that the                 
Department of Corrections does withhold their good time if they do             
not complete that program.  My understanding is ... they have less             
clear guidelines around it if someone's just been ordered to                   
Number 0939                                                                    
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and              
Sexual Assault, came forward to testify, stating that the network              
supports the bill.  She said their concerns about spacing and how              
it was worded had been resolved.  She agreed that sex offenders are            
not the easiest to rehabilitate, and she expressed support for                 
whatever mechanisms can be put in place to keep them from                      
Number 0984                                                                    
REPRESENTATIVE BERKOWITZ asked whether Ms. Hugonin knows if there              
is enough program space to accommodate all the prisoners.                      
MS. HUGONIN said she didn't know.                                              
Number 1042                                                                    
REPRESENTATIVE BUNDE made a motion to move CSSB 242(FIN) out of                
committee with individual recommendations and with the attached                
fiscal note(s).                                                                
CHAIRMAN GREEN asked whether there was any objection.  Hearing                 
none, he announced that CSSB 242(FIN) was moved from the House                 
Judiciary Standing Committee.                                                  
CSSB 323(FIN) am - SEX OFFENSES & OFFENDER REGISTRATION                        
Number 1080                                                                    
CHAIRMAN GREEN announced the final item of business would be CSSB
323(FIN) am, "An Act relating to sexual offenses, to those who                 
commit sexual offenses, and to registration of sex offenders;                  
amending Rule 6(r)(2), Alaska Rules of Criminal Procedure; and                 
providing for an effective date."                                              
Number 1114                                                                    
KRISTY TIBBLES, Researcher for Senator Drue Pearce, Alaska State               
Legislature, came forward to present the bill on behalf of the                 
sponsor.  She read from the sponsor statement as follows:                      
"The Alaska penalty for distribution of child pornography is a                 
class C felony and is not more than five years.  Law enforcement               
officers are encountering problems in trying to prove distribution,            
and offenders are often charged with or pled down to possession of             
child pornography, a class A misdemeanor offense with a penalty of             
not more than one year in prison, unless the offender is convicted             
of more than one count and receives a consecutive sentence.  Senate            
Bill 323 increases the offense for possession of child pornography             
to a class C felony, and the offense for distribution to a class B             
felony, punishable by not more than ten years in prison.                       
"Senate Bill 323 also creates the offense of indecent exposure in              
the first degree if the offender knowingly masturbates within the              
observation of a person under 16 years of age.  This crime will be             
a class C felony offense.  The bill makes the existing offense of              
indecent exposure, indecent exposure in the second degree.  The                
penalty for this offense is a class A misdemeanor when committed               
before a person under 16 years of age, and a class B misdemeanor               
when committed before a person 16 years or older.                              
"Senate Bill 323 requires sex offender registration for the                    
offenses of indecent exposure in the first degree, indecent                    
exposure in the second degree if committed before a minor under the            
age of 16 for the second offense, and possession of child                      
pornography.  Currently, only offenders who are convicted for                  
distribution of child pornography are required to register.                    
"The existence [and] distribution of child pornographic images                 
creates the potential for many types of harm in the community and              
presents a clear and present danger to all children.  Strengthening            
the penalties ... for these crimes sends a clear message that the              
degradation and exploitation of our children will not be tolerated.            
Agencies in support of Senate Bill 323 include the Department of               
Public Safety, the Alaska Peace Officers Association, the Anchorage            
Police Department, the UAF police, STAR, the Juneau Police                     
Department, and the UAA police."                                               
Number 1222                                                                    
REPRESENTATIVE BERKOWITZ asked what changes the bill makes to the              
elements of proving distribution cases.                                        
MS. TIBBLES answered that one addition, in Section 6, is language              
that allows possession of 100 or more pieces of child pornographic             
material as prima facie evidence of distribution.                              
REPRESENTATIVE BERKOWITZ referred to Section 9 on page 3 and said              
there is no statute of limitations for pursuing a criminal.                    
MS. TIBBLES explained that is current statute.  She stated that                
Section 9 adds the offense of indecent exposure in the first degree            
to that statute.                                                               
REPRESENTATIVE BERKOWITZ said that he understands that.  He                    
referred to Section 1 and said there is a civil statute.  You could            
conceivably be in a position where you're prosecuting a criminal               
case after the civil period has expired.  Representative Berkowitz             
said if the state is allowed to pursue a criminal case, then a                 
victim ought to be permitted to pursue a civil case, even if the               
civil statute of limitations might have lapsed.                                
CHAIRMAN GREEN said that is current law.                                       
Number 1333                                                                    
REPRESENTATIVE ROKEBERG questioned what the rationale was of                   
raising possession of child pornography from a misdemeanor to a                
class C felony.                                                                
MS. TIBBLES said it was raised at the request of the Alaska Peace              
Officers Association.  She explained that it was originally raised             
to a class B felony and the Department of Law asked that it be                 
reduced to a class C felony because of the penalty of it being a               
class a misdemeanor.                                                           
REPRESENTATIVE ROKEBERG said, "The way I read the bill is if you               
... have one photograph depicting anything that might be                       
interpreted to be child pornography which, as I understand it - I              
have not seen it, but maybe even be able to download it off the                
World-Wide Web I think.  So if you had a youngster who did that,               
brought it up on the web and downloaded it onto the printer you'd              
be committing a felony.  Is that what we're intending to do here?              
I mean it seems a little radical to raise it all the way up to that            
(indisc.--coughing) one piece or something.  If you're in                      
possession of it, you're committing a felony whether your brandish             
it or whatever, you're committing a felony."                                   
Number 1405                                                                    
REPRESENTATIVE BUNDE said he realizes the potential is there for               
bringing a charge, but would they choose to bring a charge and                 
would there be a conviction?                                                   
REPRESENTATIVE ROKEBERG said, "If you seize it, you're busted and              
if you got it then you're guilty."  He said he would like to know              
what constitutes child pornography.                                            
CHAIR GREEN asked, "This was because of Anchorage PD (Police                   
Department) you said?"                                                         
MS. TIBBLES answered in the affirmative and noted that Officer Glen            
Klinkhart is signed up to testify.                                             
REPRESENTATIVE BUNDE referred to trying to define child pornography            
and said he came across information where there was a suntan lotion            
ad of a young girl playing on the beach with a puppy playfully                 
pulling on her diaper or swimming trunks.  That was child                      
pornography and was relished as a pin-up.  Representative Bunde                
said that has to be a difficult, as all pornography is, definition.            
REPRESENTATIVE PORTER indicated he just reviewed the definition and            
that depiction would not be child pornography.                                 
REPRESENTATIVE BUNDE said it is used to stimulate people even                  
though it was not originally created for that purpose.                         
Number 1620                                                                    
REPRESENTATIVE ROKEBERG said, "Mr. Chairman, I was just reading the            
definition here and it comes to mind -- there is here subsection               
(6), 'the lewd exhibition of the child's genitals'."  He said he               
remembers a classic Victorian piece of landscape architecture of a             
water fountain with a young child urinating water from a well.                 
Therefore, if you were in possession of that, you would be subject             
to a class C felony."  Representative Rokeberg said his major                  
concern is that if you are in possession of any of items listed in             
the bill  -- if you buy it on the newsstand and you're in                      
possession of it, it might be a felony.                                        
REPRESENTATIVE BUNDE said, "Magazines and newspapers that are                  
specifically designed for that information."                                   
REPRESENTATIVE PORTER noted they aren't lawfully for sale.                     
REPRESENTATIVE CROFT said, "I guess I'm confused between unlawful              
exploitation, which is, in this state, getting a child to do this -            
and possession of wherever produced.  Section 11.41.455, which was             
the definition we were worried about for lewd exhibition."  He                 
stated he can understand unlawful exploitation.  There is a                    
distinction between getting a minor to do this and being in                    
possession of pictures of it.                                                  
CHAIRMAN GREEN informed Mr. Klinkhart that the committee is                    
concerned about page 3, which speaks to the fact that we now have              
gone to a class C felony.  He asked what would constitute the                  
possession of enough material that would require such a stiff                  
penalty.  He cited the example of downloading a picture off of the             
Internet.  He also asked, "Would your interpretation of this be                
that if somebody had a picture that would possibly be considered a             
pornographic ... picture of a 17-year-old, if that would constitute            
a felony?"                                                                     
GLEN KLINKHART, Anchorage Police Department, testified via                     
teleconference from Anchorage.  He referred to policy procedures               
that they go through on state and federal levels and said most of              
the district attorneys that he has spoke to on different cases he              
has been involved with are all in agreement that you need to have              
more than just one.  One could be constituted as a mistake.  Mr.               
Klinkhart referred to a case he was involved in where a woman was              
looking on the Internet for a recipe.  She clicked on a picture and            
up came a photograph of a nude female, approximately 12 years old.             
He said in order for the woman to report it to him, he had to go to            
her house and view it on the computer.  He said that was accidental            
on the part of the woman looking for the recipe.  She was right to             
report it to the police.  Mr. Klinkhart said the department then               
started a case involving the person who posted it.  In speaking                
with several prosecutors he works with, they don't just want one or            
two, they want ten photographs.  Finding more than a couple has                
never been a problem in the cases he has worked.  [Due to the                  
teleconference connection, part of Mr. Klinkhart's testimony was               
MR. KLINKHART said there was a gentleman who was trading pictures              
like baseball cards.  That is how they are being distributed and               
generally, they don't buy them.  They actually have whole series of            
different photographs that have been taken from the 1950s, 1960s               
and the 1970s.  He indicated that the old photographs that are                 
around 20 or 30 years ago have become collector items.                         
REPRESENTATIVE BUNDE asked Mr. Klinkhart if in his experience                  
nobody has ever been prosecuted for possessing fewer than ten                  
MR. KLINKHART responded in the affirmative.  He said he currently              
has, on his case-load, four or five cases.  Last year, they've                 
actually charged and have begun (indisc.) proceedings for others               
over the last year.  There are usually more than ten pictures                  
involved.  He stated they will find one or two pictures which leads            
them to more.  Mr. Klinkhart indicated most instances involve the              
Number 2073                                                                    
REPRESENTATIVE BERKOWITZ said it has been indicated that there has             
been some proof problems with some cases.  He asked Mr. Klinkhart              
where he thinks the hard parts are of proof are in distribution                
MR. KLINKHART pointed out that distribution is somewhat of a                   
problem because like drugs, you have to do a buy.  You have to be              
able to get into the organization or at least be able to do                    
(indisc.).  With child pornography, that is something they have to             
be really careful of.  You can somewhat control the money that you             
give people by serial numbers going from one person to another.  He            
said, "Our big fear and problem with child distribution of child               
pornography that if you become unlawfully involved in ...                      
(indisc.), unfortunately, we (indisc.) provide them the money for              
-- in most cases they trade photographs of children.  And I,                   
myself, and I've talked with our chief of police here in Anchorage             
and other law enforcement agencies, we don't want to get into that             
mainly because if I go send a photograph to somebody, and basically            
set up  some sort of (indisc.), within seconds they can turnaround             
and distribute that to literally thousands of people.  And I think             
that that situation we don't want to get into.  I could definitely             
show you over the time period that I was investigating these cases             
that these people are not selling them, they are trading them.                 
Last night I was on the Internet and did a search for Alaskans,                
people here in Alaska, who are on these different areas.  Usually              
they're called news groups and chat groups.  I was on the Interest             
relay chat last night, you can watch how people who are within                 
Alaska getting onto these national sites and are entering areas                
called places like mom/daughter sex, dad/daughter sex, family sex.             
And going into these areas -- and they're trading.  You can                    
literally see these people setting up their computers and allowing             
people to upload - download files.  That, in itself, could be                  
relatively good information because as that could show, 'Hey, I got            
a computer out here, I want to send you a file, you send me a                  
file.'  And that sort of thing works to help prove distribution.               
But after the fact, once we get in there, unless we can catch you              
at the keyboard, which can be very difficult in (indisc.) cases.               
So, as anybody knows, you reach over and hit the power key makes it            
very difficult to be able to show that that person actually was                
actually doing a transmission.  They look at it like drugs,                    
somebody who have four pounds of cocain.  That's not for ... ones              
own use."                                                                      
Number 2199                                                                    
REPRESENTATIVE BERKOWITZ referred to the quantity measure of 100               
and asked if that measure has been used in other jurisdictions or              
MR. KLINKHART responded, "Not that I'm aware of ... but that's not             
to say that it can't."  He indicated that Alaska has sort of taken             
the lead, nationally, in these kind of cases.  Mr. Klinkhart                   
referred to the Alaska sex offender registry on the computer said              
and indicated that sex offenders absolutely hate it.  A lot of                 
other states have been asking Alaska how we did it.  He discussed              
a case he worked on and said it related to a gentleman who is what             
they call "a boy lover."  They don't call themselves pedophile but             
do call themselves "boy lovers" or "girl lovers."  He noted those              
people don't think that people who love children, sexually, should             
be on the sex offender list.  Mr. Klinkhart said that we're just               
telling those people, "If you're going to be collecting this stuff             
and trading it that we're not going to allow it."                              
Number 2265                                                                    
REPRESENTATIVE CROFT referred to Victorian era pictures or                     
depictions of naked children and asked Mr. Klinkhart how he                    
distinguishes, in  the prosecutions, the adjective "lewd" that is              
in Section 11.41.455, "the lewd exhibition of the child's                      
genitals."  He questioned what a non-lewd exhibition of the child's            
genitals is.                                                                   
MR. KLINKHART explained that the general rule that they have                   
attempted to apply is they look at the photograph and question what            
the main focus.  Is it a nude child and is it kind of a nature sort            
of a photograph?  Is the focus point of the photograph the                     
gentiles?  He stated he has seen enough that when he looks at a                
photograph he can pretty much tell such the legs are spread or the             
child looks down at the area.                                                  
REPRESENTATIVE CROFT asked Mr. Klinkhart if there has been                     
situations where he has decided not to prosecute because it hasn't             
appeared to be focused on the genitalia and hasn't appeared to be              
lewd.  It appeared to be something else.                                       
MR. KLINKHART explained that he wouldn't say that they haven't                 
decided to prosecute as there are currently several open cases that            
are in the grey area.  He said he is waiting for more evidence.  He            
will hold those cases, continue to watch the suspect  and monitor              
certain activities.  There are eight other things that fall into               
that which include older photographs and etchings.  It's not enough            
to have a drawing.  A lot of people are surprised to find out that             
drawings and writing doesn't fit into the child pornography                    
Number 1412                                                                    
REPRESENTATIVE CROFT asked, "Are those standards, for what is lewd             
and what is not, written down somewhere - the things that you                  
analyze in making that determination?"                                         
MR. KLINKHART explained that he has been using the federal                     
guidelines as those guidelines are a little bit more straight into             
specifically looking at the focus point being the genitalia.  The              
state uses the words "lewd" and "lascivious" which are very broad.             
REPRESENTATIVE CROFT asked Mr. Klinkhart to send him a copy of the             
federal guidelines.  He asked if the federal guidelines are                    
regulation or statute.                                                         
MR. KLINKHART indicated it is in statute.  He said he would forward            
the guidelines to the committee.                                               
REPRESENTATIVE CROFT said, "The reason we've increased these                   
penalties to such a point is we're always tying it to a specific               
child having to have gone through this.  So you're point before                
about stories or cartoons or whatever - the reason we elevate these            
penalties is because I see even in the..."                                     
TAPE 98-75, SIDE B                                                             
Number 0001                                                                    
REPRESENTATIVE CROFT continued, "...minor having gone through this.            
Is that right?"                                                                
MR. KLINKHART responded, "That's correct.  Not only be able to find            
the minor, however, we are seeing some folks, who think that                   
they're not happy with some of the stuff that's available out there            
are starting to manufacture child pornography.  They're going out              
and assaulting children and photographing it into their computer.              
One of the things where the cases that I've done have started out              
as strictly child porn cases and have reason to believe people were            
even trading or having possession of it.  We have ... how should I             
tell you, in every case that I've come across, I have reason to                
believe that those same people have, in the past, or currently are             
sexually assaulting children."  Mr. Klinkhart said when he worked              
with their "crimes against children" detective, he has found that              
people who are sexually assaulting children are often times                    
involved in child pornography.  He said there seems to be a                    
definite connection.                                                           
Number 0035                                                                    
REPRESENTATIVE ROKEBERG asked if in any of the cases Mr. Klinkhart             
has been involved in has it ever been asserted an affirmative                  
defense about whether a person was knowingly in possession or not.             
MR. KLINKHART indicated a person ha to knowingly locate child                  
pornography and they have to go through several steps to find it,              
and then they take it from their computer and the put it somewhere             
else, either on their computer or on an external disk.  Some people            
have gone so far as to sort and organize it.  Knowingly has never              
been a problem, especially in some cases where they have to                    
literally go through hundreds of photographs.                                  
REPRESENTATIVE ROKEBERG referred to the term "lascivious" and said             
he doesn't see it in statute.                                                  
MR. KLINKHART indicated he didn't bring any of his information with            
REPRESENTATIVE ROKEBERG asked if there are other statutory                     
citations where lascivious is used conjunctively with lewd.                    
MR. KLINKHART responded, "I think you're thinking of the federal               
guidelines which is kind of why were here because we have to -- in             
order to get these guys charged as a felony, we have to go through             
the federal.  So I've actually (indisc.) of going federally with               
some of these."                                                                
Number 0133                                                                    
REPRESENTATIVE ROKEBERG suggested that if the standard for                     
possession was increased to 10 or 12 items, would that hinder the              
department's ability to prosecute the offenders?                               
MR. KLINKHART said he doesn't believe so.  He said the only thing              
is that you get into those people who are going to save "nine here,            
nine there," and what not.  He noted the federal attorneys have                
asked for nine or ten, (indisc.) show a pattern.  That goes back to            
"knowingly."  One or two could be an accident.  Three or four could            
be in that grey area.                                                          
REPRESENTATIVE ROKEBERG asked Mr. Klinkhart if it would help him               
do his work if the crime were raised from a class A misdemeanor to             
a class C felony.                                                              
Number 0181                                                                    
MR. KLINKHART said in speaking with other officers, he believes                
raising the class would do a couple of things.  It would let people            
in Alaska know that this is a serious crime.  He said not only do              
we have people who are assaulting children and photographing them,             
but they trade those photographs.  He continued to give testimony              
which was indiscernible on the tape.                                           
Number 0278                                                                    
REPRESENTATIVE CROFT stated he supports the legislation and                    
believes it is the right approach.  He said, "I'd like to take that            
federal definition of what is lewd and give us more guidance on it             
and I'd like to get that and see if it fits into here so that we               
can know, in that area, what it is and what it isn't.  I don't want            
to delay the bill, but I don't know how quickly I can get that and             
get it turned around in to a proposal."                                        
CHAIRMAN GREEN asked Mr. Klinkhart if he is going to fax the                   
information.  He also asked if it is more than one page.                       
MR. KLINKHART responded that he will have to find it and noted it              
is back at the police station.                                                 
REPRESENTATIVE ROKEBERG asked, "Christy [Ms. Tibbles], when you                
looked at this, did you consider any kind of a two-tier system on              
this possession?  (Indisc.) like the first offense would be a                  
misdemeanor and then there after be a penalty.  Did you ever                   
consider that?"                                                                
Number 0317                                                                    
MS. TIBBLES said they didn't consider that in the beginning.  She              
noted she did speak to Mr. Klinkhart about the amount of                       
photographs possessed and, like he stated, it's hard to draw the               
line.  If you have ten, why is nine okay?                                      
REPRESENTATIVE ROKEBERG said he thinks that creates a loophole.                
REPRESENTATIVE BUNDE referred to the definition of "lewd" and said             
if Representative Croft felt that was necessary and wanted to offer            
that as a floor amendment, he would co-sponsor it.                             
REPRESENTATIVE PORTER stated he is hesitant to fix things that                 
aren't broke.  He said the penalty is being increased in existing              
statute with an existing definition.  If there haven't been                    
prosecutorial with establishing it, he isn't anxious to start any.             
Number 0357                                                                    
REPRESENTATIVE CROFT stated that we haven't had prosecutorial                  
problems because good officers, like Mr. Klinkhart, have been                  
referring to the federal definitions.  That is probably proper but             
not required by the statute.  The very thing that Mr. Klinkhart is             
doing is what Representative Croft wants to make sure is done in               
that there be some kind of a definition for the standards.  The                
very fact that an officer has to look some place other than the                
Alaska Statutes seems to be an indication that there is a problem.             
He was filling that whole properly with the federal definition.                
Number 0398                                                                    
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and            
Sexual Assault, Department of Public Safety, came before the                   
committee to testify in support of CSSB 323(FIN) am.  It is an                 
important piece of legislation and the link between child                      
pornography and child abuse is much too prevalent for us to ignore.            
CHAIRMAN GREEN referred to testimony from Mr. Klinkhart regarding              
there being a reference to federal guidelines.  He asked Mr.                   
Guaneli if he finds that necessary in prosecution or is there                  
enough in statute.                                                             
Number 0419                                                                    
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                 
Section - Juneau, Criminal Division, Department of Law, came before            
the committee.  He stated it sounds like, from what Mr. Klinkhart              
said, there really isn't much of a problem in terms of establishing            
what pictures are so bad that they constitute child pornography.               
He said although federal definitions might be helpful for purposes             
of law enforcement and guiding investigations, he isn't convinced              
that we have a particular problem with these cases.  He said, "It              
sounds like they're getting enough pictures that people are willing            
to come in an admit -- I don't know of cases that have actually                
gone to trial where people want any of those pictures shown to the             
jury.  I think they're probably going to come in and cut whatever              
deal they can with the prosecution.  So I'm not aware of any                   
problems.  It seems as though that particularly the language in the            
exploitation of minors statutes about the lewd exhibition, and all             
the rest, probably provides enough guidance in terms of the                    
investigators choosing which pictures fall within ... those                    
parameters.  But without having ... seen the federal guidelines, I             
don't want to say for certain, but it doesn't strike me as though,             
from what occurred that it's necessary."                                       
CHAIRMAN GREEN referred to the picture of the girl with the puppy              
pulling at her bathing suit and said it is certainly different than            
some of the other descriptions that have been indicated.                       
MR. GUANELI responded in the affirmative.                                      
Number 0485                                                                    
REPRESENTATIVE BERKOWITZ said Mr. Klinkhart testified that he                  
thought that their might be good reason to have statewide standards            
for these types of crimes.  He said it seems to him that                       
Representative Croft's concept of incorporating the federal                    
regulations, that Mr. Klinkhart is using in Anchorage, might be of             
some assistance, particularly in the smaller jurisdictions as you              
don't have officers that have the capacity to specialize in                    
different crimes.                                                              
MR. GUANELI responded that it might be helpful from a law                      
enforcement standpoint, but he isn't certain that it necessarily               
needs to be written into statute.  It is something that he believes            
the law enforcement community, if they feel that those are                     
appropriate guidelines, could certainly circulate.  He said that               
whenever you use words to describe conduct or to describe conduct              
or something like this, there is always going to be grey areas or              
some vagueness.  He said, "I think it's like one supreme court                 
justice said about obscenity, 'You know it when you see it.'  And              
I think the experienced officers, I think, have that ability."                 
REPRESENTATIVE BERKOWITZ said, "The cases we've all heard reference            
to, though they're based out Anchorage, and Eagle River and that               
area, which seems to indicate either the rest of the state doesn't             
suffer this problem or else isn't equipped to prosecute it.  And if            
we were to implement some standards that would allow officers,                 
throughout the state, to pursue these cases, it could be of some               
MR. GUANELI informed the committee that he isn't disputing that it             
might be of some assistance.  He thinks that perhaps what the                  
problem may be is that Anchorage has an experienced officer who has            
been trained to seek this out.  He said he recently received a                 
notice for further training for other officers in detecting child              
pornography and other computer-type offenses.  The more training               
that's available might be part of the solution.  Mr. Guaneli stated            
he isn't objecting to taking a look at them.  He is just                       
questioning whether it's absolutely necessary.                                 
Number 0602                                                                    
REPRESENTATIVE PORTER some years back when this area of the law was            
first being identified as a serious problem, some of these kinds of            
considerations at the municipal level were looked at.  He noted                
that while he was the chief of police, the municipal assembly spent            
days writing definitions and running them back and forth against               
case law in the district attorney's office.  It is no simple task.             
If it is that we have successfully prosecuted with the definitions             
and understandings of the elements of these crimes as they are                 
currently stated in the books, he would be very cautious about                 
interrupting it.  He cautioned that if it's not broke, let's not               
fix it.                                                                        
REPRESENTATIVE ROKEBERG said it would be changed by raising the                
punishment and, also, because of the sex offender requirement,                 
another layer is being added.                                                  
CHAIRMAN GREEN explained the offense is being changed, but not the             
determination that constitutes it.                                             
REPRESENTATIVE ROKEBERG said, "I'm concerned about the planting of             
material, the lack of knowingly being in possession, no pattern or             
anything else here that could be used with -- if there is a                    
breakdown in prosecutorial restructuring then there could be a                 
prosecution and would be warranted into a felony situation.                    
REPRESENTATIVE CROFT said he doesn't know whether the case law has             
further described the word "lewd" to give it more legal depth so               
that we know some of the things Mr. Klinkhart was talking about,               
undue focus on the genitalia and other factors that might be looked            
at.  He stated he does think if it doesn't have it, it needs some.             
The word "lewd" is too subjective for a class B and class C felony.            
Number 0790                                                                    
MR. GUANELI explained that there used to be a statute in Alaska                
called, "Lewd and Lascivious Acts Toward a Child."  It was repealed            
in the 1980 revision of the criminal code, which gave us all our               
current criminal law.  He stated that he doesn't believe that there            
is any Alaska case law, except from the 1970s, that talks about                
what lewd is.  He indicated he would review that get back to the               
REPRESENTATIVE CROFT said, "We don't have to hold up this bill for             
that discussion, but I'll look for that material from the officer              
and that information from Mr. Guaneli and see whether it needs more            
definition or not.  It is -- both Representative Porter and                    
Rokeberg are right.  It's not changing the elements, but it is                 
upping the price pretty substantially ... so it could reasonably               
increase our concern that we've got the proper definition in there.            
But it doesn't mean that we have slow this (indisc.)."                         
CHAIRMAN GREEN said, "Well, if you can get that and feel that's                
important enough to offer an amendment tomorrow, we could take up              
five minutes of tomorrow's agenda and either pass it with or                   
without that type of a change."                                                
[CSSB 323(FIN) am was held over]                                               
Number 0874                                                                    
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee                
meeting at 3:15 p.m.                                                           

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