02/07/2003 01:02 PM House JUD
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 7, 2003
1:02 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative John Coghill
Representative Jim Holm
Representative Max Gruenberg
MEMBERS ABSENT
Representative Ralph Samuels
Representative Les Gara
COMMITTEE CALENDAR
HOUSE BILL NO. 12
"An Act relating to harassment."
- MOVED CSHB 12(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 1
"An Act relating to stalking and to violating a protective
order; and amending Rules 4 and 65, Alaska Rules of Civil
Procedure, and Rule 9, Alaska Rules of Administration."
- MOVED CSHB 1(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 12
SHORT TITLE:HARASSMENT BY ELECTRONIC COMMUNICATION
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
01/21/03 0033 (H) PREFILE RELEASED (1/10/03)
01/21/03 0033 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0033 (H) JUD
02/03/03 0119 (H) COSPONSOR(S): WHITAKER
02/07/03 0153 (H) COSPONSOR(S): ANDERSON,
CHENAULT
02/07/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 1
SHORT TITLE:STALKING & PROTECTIVE ORDERS
SPONSOR(S): REPRESENTATIVE(S)CRAWFORD
Jrn-Date Jrn-Page Action
01/21/03 0030 (H) PREFILE RELEASED (1/10/03)
01/21/03 0030 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0030 (H) JUD, FIN
01/21/03 0030 (H) REFERRED TO JUD
01/29/03 0088 (H) COSPONSOR(S): MCGUIRE
02/07/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 12.
LEO BRANDLEN, President
Board of Directors
Alaska Peace Officers Association (APOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 12.
RICHARD RHEA, Anchorage Police Department (APD),
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 12.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 12 and responded
to questions.
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 1.
MARCI SCHMIDT
Wasilla, Alaska
POSITION STATEMENT: During discussion of HB 1, recounted a
personal experience and urged passage of HB 1.
MARY WELLS
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 1, recounted a
personal experience and suggested that the bill will help other
victims of stalking.
BRUCE R. ROBERTS, Deputy Municipal Attorney
Criminal Division
Department of Law
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions and provided
comments during discussion of HB 1.
THERESA WILLIAMS, President
Pissed Off Parents (POP)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 1.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
1.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Provided comments in support of HB 1 and
responded to questions.
ACTION NARRATIVE
TAPE 03-4, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:02 p.m. Representatives
McGuire, Anderson, Holm, Coghill, and Gruenberg were present at
the call to order. Chair McGuire noted that Representatives
Gara and Samuels have been excused.
HB 12 - HARASSMENT BY ELECTRONIC COMMUNICATION
Number 0044
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 12, "An Act relating to harassment."
Number 0063
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 12, version 23-LS0050\D, Luckhaupt,
1/22/03, as the work draft. There being no objection, Version D
was before the committee.
Number 0089
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
explained that Version D changes the title of HB 12 so that it
now reads:
"An act relating to the crime of harassment committed
by use of electronic communication."
REPRESENTATIVE MEYER went on to say that HB 12 merely adds
"electronic communication" to the list detailing what
constitutes the crime of harassment. Current statute does not
provide law enforcement with the necessary tools with which to
pursue people who harass others via electronic communications.
Harassment via electronic communication, he remarked, has become
an inexpensive and attractive method of harassment for many who
are unwilling to face, either in person or over the phone, those
they are harassing. He also remarked that in addition to being
a serious crime on its own, harassing others is often a prelude
to more serious crimes. He opined that HB 12 will create an
important tool for law enforcement officers as they pursue
perpetrators who use electronic communications to harass others.
Representative Meyer urged members to support HB 12.
REPRESENTATIVE GRUENBERG noted that he has a proposed amendment
that will, on line 12, after "or", add "obscene", and provide
for some grammatical adjustments.
REPRESENTATIVE MEYER said that he supports such an amendment.
Number 0381
LEO BRANDLEN, President, Board of Directors, Alaska Peace
Officers Association (APOA), said simply that the APOA has sent
a letter of support to the committee, and is in support of both
HB 12 and the suggested amendment. He observed that HB 12 will
cover both e-mails and "text messaging."
Number 0495
RICHARD RHEA, Anchorage Police Department (APD), Municipality of
Anchorage (MOA), said simply that he supports HB 12.
REPRESENTATIVE GRUENBERG noted that the committee has received
Mr. Rhea's letter.
Number 0543
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
remarked that the DOL supports HB 12. She suggested that the
proposed amendment be altered such that, after "call" on line
12, insert ", obscene electronic communication,". She also
remarked that most of the e-mail communications in question are
anonymous.
REPRESENTATIVE GRUENBERG expressed a willingness to consider
that language in place of his original suggestion.
REPRESENTATIVE ANDERSON, after reading the language in current
statute, the language in Version D, and the language in the
DOL's suggested language change, asked whether the intent of
that suggested language is to separate "obscene electronic
communication" from "anonymous".
[Ms. Carpeneti nodded yes.]
REPRESENTATIVE ANDERSON referred to page 10 of a handout
provided to the committee titled "1999 Report on Cyberstalking:
A New Challenge for Law Enforcement and Industry." He said that
according to the second paragraph on page 10 under the heading
"Law enforcement response: the challenge of anonymity," one
form of anonymous service is established via a false electronic
mailbox. From that same paragraph on page 10 he then read, "The
second form comprises mail servers that purposefully strip
identifying information and transport headers from electronic
mail." He relayed that the report goes on to talk about
"remailers," in which "you go from one account to another
account to another account, and then you can't trace it." He
asked whether the suggested language would restrict HB 12 from
applying to anonymous e-mails such as remailers.
MS. CARPENETI offered her belief that the suggested amendment
would preclude HB 12 from applying to anonymous e-mails. "The
amendment would only make it harassment under a (a)(4) to send
electronic communications that are ... obscene or ... that
threaten physical injury," she added.
REPRESENTATIVE MEYER indicated that he agreed with the intent of
the suggested amendment. He mentioned that the Anchorage
Assembly has already "passed" similar language.
MS. CARPENETI, in response to further questions regarding the
intent of the legislation and the suggested amendment, explained
that with anonymous e-mails, it would be difficult to find and
prove, beyond a reasonable doubt, that the author intends to
harass the recipient.
Number 1012
REPRESENTATIVE GRUENBERG mentioned a recent U.S. Supreme Court
case that said there is a constitutional right for anonymous
editorials, and that the right of free speech - and in that case
free press as an adjunct - implies and carries with it the right
to do so anonymously. The key thing [with HB 12], he noted, "is
that you have the criminal intent." From a strictly
constitutional point of view, he said, he is glad that law
enforcement does not pursue authors of anonymous e-mails simply
because the e-mails annoy somebody; for example, political
statements can be annoying to some people.
REPRESENTATIVE ANDERSON referred to page 6 of the aforementioned
report and noted that under the heading "Actual Cyberstalking
Incidents," it mentions the use of Internet chat rooms and
online bulletin boards in stalking incidents. He pointed out
that under this same heading there is also mention of a
prosecutor in Massachusetts charging a man who utilized
anonymous remailers to systematically harass a co-worker. So
this does occur and there is prosecution for it, he remarked.
MS. CARPENETI remarked that Alaska statutes already prohibit
stalking, and ventured that such examples as listed in the
report might qualify as stalking itself. She said that she
would research that issue further. Harassment, she pointed out,
is a class B misdemeanor. In response to further comments, she
mentioned that statutes addressing cybercrimes have recently
been enacted.
REPRESENTATIVE ANDERSON raised the issue of defining the term
"electronic communication". He noted that it is not currently
defined in either the bill or Title 11. He recommended that the
committee draft a letter of intent that clarifies what the
committee views as an "electronic communication".
REPRESENTATIVE MEYER remarked that he would welcome a letter of
intent.
Number 1304
CHAIR McGUIRE noted that currently, "electronic communication"
is defined in Title 42; she opined, however, that this
definition is too broad and doesn't really apply to the issue at
hand. She remarked that simply creating a letter of intent is
fine with her.
REPRESENTATIVE GRUENBERG suggested that because law enforcement
officials, the court system, and the general public won't
necessarily be aware that there is a letter of intent
stipulating exactly what is meant by the term "electronic
communication, it would be better to define the term within the
[proposed] statute itself. By doing so, he posited, the
committee will be assured that all parties will define the term
as intended.
REPRESENTATIVE HOLM suggested that any definition created now
may quickly become obsolete and not inclusive enough, and might
thus require constant alterations.
CHAIR McGUIRE, on that point, said that rather than having a
narrow definition in the statute, she would prefer to have a
letter of intent that contains a "living" definition of
"electronic communication" such that it would be as inclusive as
possible while still allowing for technological advances.
REPRESENTATIVE GRUENBERG suggested, then, that the committee
ought to consider the suggested amendment, pass the bill out of
committee, and have staff spend the next few days creating the
letter of intent so that it can then be included in the bill
packet as it continues through the process.
Number 1566
REPRESENTATIVE ANDERSON made a motion to adopt Amendment 1
[original punctuation provided; current line numbers pertain to
the original bill and may need to be changed to fit Version D]:
Page 1, lines 11 - 13:
Delete all material and insert:
"(4) makes an anonymous or obscene telephone
call, obscene electronic communication, or a telephone
call or electronic communication that threatens
physical injury; or"
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being no objection, Amendment 1 was adopted.
Number 1583
CHAIR McGUIRE then directed members of staff to form "a
subcommittee of intent," the duty of which shall be to create
the letter of intent, which can then be added to the bill packet
in time to go to the House floor.
Number 1606
REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB
12, version 23-LS0050\D, Luckhaupt, 1/22/03, as amended, out of
committee with individual recommendations, the accompanying
fiscal notes, [and the forthcoming letter of intent]. There
being no objection, CSHB 12(JUD) was reported from the House
Judiciary Standing Committee.
HB 1 - STALKING & PROTECTIVE ORDERS
Number 1623
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 1, "An Act relating to stalking and to
violating a protective order; and amending Rules 4 and 65,
Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of
Administration."
Number 1648
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature,
sponsor, said that HB 1 repairs an omission in the statutes
pertaining to stalking. Currently, stalking is only a crime in
Alaska if the victim knows the stalker. He surmised that the
omission probably occurred because the stalking statutes were
originally developed to fit the domestic violence statutes. He
said that although there are not a large number of people who
would benefit from HB 1, every year there are people who are
being stalked by strangers, and he opined that they need the
same protection as those who are stalked by someone they know.
He referred to HB 1 as a technical change that allows the use of
protective orders in instances when a person is being stalked by
someone unknown.
CHAIR McGUIRE noted that this legislation passed the House
unanimously in the 22nd legislature and had a lot support as it
moved through the Senate.
Number 1743
MARCI SCHMIDT relayed that her minor son was assaulted last July
by another minor and that minor's older sister, and then, over
the course of the next few months, they proceeded to stalk her
son and terrorize him at his place of employment. She said that
when she went to the courthouse to get a restraining order, she
was unable to get one [because of the stipulation that a victim
must have a relationship with his/her stalker]. She indicated
that she still desperately needs that restraining order, and
urged the passage of HB 1 so that it will be easier for victims
to find legal remedies to the problem of being stalked by those
unknown to them.
Number 1829
MARY WELLS recounted her personal experience. She said:
I was a stalked victim, including my entire family.
... In August of 1991, a man began calling my home and
work using different names. The statements he made
were inappropriate and sexual in nature. He then
focused his attention directly at my children who were
ages 5 and 12. At first he befriended them over the
phone, and by the time my children told me about it,
first thing I did was just put a halt to them
answering the phone. And next thing you know, he's
leaving messages. By October, the phone calls and
messages left on my answering machine increased up to
15 times a day - at work and at home. He would call
at all hours of night: 11 o'clock [p.m.], 1, 2, 3, 4
in the morning. His statements to my children were
all alarming, frightening, and X-rated. By then, my
5-year-old became incontinent every time the phone
rang. For two months my boys, again ages 5 and 12,
stayed anywhere from 6 to 12 inches in distance away
from mom and dad, the school teachers, and all of the
adults that I trusted.
I [had] called the police numerous time for
assistance, and the best they could do was take the
report. It wasn't until ... mid-October [that] I
truly [discovered] who this guy was, because I didn't
know who I was dealing with. By the first week of
November, we noticed a significant change in his
behavior, tone, and actions. He stated he was on his
way, he was coming, he had a present that would hurt
my boys, and, of course, that was enough to make mom
go a little bit crazy. On the day that he did mention
my boys in relation to pain, I lost all fear and
started to prepare ... [for] what I needed to do to
protect my kids and to create some kind of a buffer
without the help of the law. [I had] my faith in God
- or our faith in God, my sword - my friends, the
police, and the law. And I went to court to obtain a
protective order.
On November 6th, Judge Murphy said to me that he had
to ... deny our protective order because the law
didn't apply to us. He clearly stated the law, and
then explained it in a layman's terms. Basically, we
had no recourse because, one, we were not members of
his family ..., we've never lived with him, currently
[are] not living with him or under the same roof, ...
never dated this guy or have ever dated him, or ever
had a sexual relationship. And that's where there's a
loophole in the law. Further, Judge Murphy indicated
that the law needed to be changed. On that particular
day, ... he told me of a mother, ... with ... a child,
who sat in the very same seat on a very similar
situation almost exactly one year to the day I was in
court, who had a stalking situation and [was] shot
shortly after the courthouse meeting. And it's just
another case of ... a stranger.
Number 1980
MS. WELLS continued:
But I am here today, as a citizen, to represent so
many voices from all over Alaska who are living in
fear of their stalker, like myself; at the time of
crises, I didn't know what it was that attracted him
to my family, and of course to a 5-year-old and a 12-
year-old. There are lots of people out there in our
communities that are living in fear, and they don't
know [why] the stalker has an interest in who it is
that they're stalking ... - it could be the blond
hair, it could be the 10-year-old innocence, the
length of the fingernails - God only knows. But since
that happened to me, I have learned so much; I have
learned that stalkers often choose their victims who
are in public: someone who's shopping; [or] giving a
presentation; [or] standing in line in a theater, in a
restaurant, [or] at a bus stop; or just picking up
their kids at a daycare center.
Stalkers carefully choose their victims. Currently, I
know of a woman ...[whose] son was murdered a year and
a half ago; ... a member of the family is currently
stalking her to keep her from testifying in a grand
jury. She's already lost a child and she's not afraid
- no more different than I am, but I put my stalker
away, so I'm not as afraid. The other victims are
very, very much afraid. I have been in nonprofit
health and human services nearly all of my adult life,
and if it wasn't for the exposure of working at Bean's
(ph) Cafe, the homeless (indisc), United Way, and all
of the other direct service agencies, and the dear,
wonderful people that embraced my family during this
crisis, I would not have known what to do. And I
wouldn't have known what process I needed to go
through to be here today and also last year.
Number 2042
MS. WELLS concluded:
And I thank the police officers, the prosecuting
office, and all of those great people that did an
impeccable job in helping me put my stalker away. But
for many Alaskans who may not have the same support
system that I do, God only knows what they will do in
order to protect themselves and their family members.
We as a voice, although it's just my voice because a
lot of them are still afraid, we are asking you to
pass House Bill 1 so it includes all stalking victims,
not just the adults but also the little people, and
especially those that just don't have those prior
relationships. So, thank you for allowing me the
opportunity to be here, and [I] hope that [HB 1] will
pass smoothly; [it is] a bill that can prevent
unnecessary potential deaths and [save] potential
lives of many Alaskans.
REPRESENTATIVE HOLM asked Ms. Wells whether she ever pursued
harassment [charges].
MS. WELLS said that the prosecutor's office did consider that
option among several others.
Number 2164
BRUCE R. ROBERTS, Deputy Municipal Attorney, Criminal Division,
Department of Law, Municipality of Anchorage (MOA), relayed that
the MOA does not have a municipal harassment statute; instead,
the MOA had to charge Ms. Wells's stalker with "illegal use of
telephone," which is a violation of Anchorage Municipal Code
(AMC) 8.10.090, and a misdemeanor stalking charge. He noted
that there are some similarities between the state's harassment
statute - AS 11.61.120 - and the MOA's disorderly conduct
charge. He mentioned that the MOA is in the process of
reviewing and amending AMC 8.10.090, which currently reads:
A. It is unlawful for any person to telephone or
electronically communicate with another person with
the intent to harass that person or that person's
family.
B. It is prima facie evidence of intent to harass
that the caller
1. Made repeated telephone calls or electronic
communications, having been told such calls were
unwelcome; or
2. Called or communicated anonymously; or
3. Used profane or patently abusive language; or
4. Threatened the receiver or the receiver's
family.
MR. ROBERTS mentioned that when the Anchorage Police Department
(APD) investigates a crime, if the circumstances do not fit
specifically within an Alaska Statute, the matter is pursued
through the city prosecutor. He surmised that this may be one
of the reasons that a harassment charge was not pursued. If, on
the other hand, a crime fits within an Alaska Statute, the APD
refers the case to the state district attorney's office. He
said that he did not know whether the district attorney's office
was ever involved in Ms. Wells's case.
MS. WELLS relayed that the district attorney's office was
contacted, but referred her case back to the municipal attorney.
She added that "it fell under the category of domestic
violence."
REPRESENTATIVE HOLM, speaking to Mr. Roberts, said:
As a prosecuting attorney, is it not your place to
find solutions for people who've been wronged? ... I'm
perplexed a little bit that the process broke down and
didn't offer [Ms. Wells] an alternative, when, in
fact, in the law, we do have alternatives.
MR. ROBERTS replied that Ms. Wells was offered an alternative.
"We used the tools that we had available, and that was to file a
misdemeanor stalking charge and the illegal use of telephone
[charge]," he explained, adding that the case was handled
expeditiously - a warrant was sought, and the suspect was
arrested in short order.
TAPE 03-4, SIDE B
Number 2376
MR. ROBERTS pointed out that the solution that was chosen by the
municipal prosecutor in that case was to have the man charged
and stop the conduct. He relayed that, oftentimes, they do not
have the tools to do that. After noting that he has worked in
the criminal justice system for over 20 years, he said that on a
number of occasions, he would hear from victims - complainants -
the legitimate question of, "What do I have to do, do I have to
be killed before I can do something?" The problem that arose in
Ms. Wells's case is that she did not have a relationship with
the stalker; thus she could not avail herself of an emergency
protective order issued by the court. He surmised that in the
future, that type of problem would be alleviated if HB 1 were to
become law; persons with a legitimate claim will be able to
avail themselves of the expedited process that the court
currently provides for domestic violence situations. He
mentioned that currently, the only recourse for someone in Ms.
Wells's position is to report the violation to the police, who
will then take a report and respond in person. He surmised that
in Ms. Wells's case, she was probably told to seek a restraining
order so that the process could get started.
MR. ROBERTS went on to say:
If we don't have the tools, which are the criminal
laws, to provide a solution to people, we have to send
them elsewhere. ... If it's not a criminal wrong, then
it's a civil wrong, and, in fact, if you want a
restraining order against someone, you can petition
the court for a temporary or permanent injunction
against that person contacting you or ... coming on
your land or property ..., but that's a longer
process; that's, to date, ... the only way that
someone who is not a family member or household member
can go to get some emergency relief if some other
crime has not been committed.
Number 2244
Something you should also know is that an officer
cannot make an immediate arrest for ... a misdemeanor
offense not committed in their presence; ... they have
to observe it. Otherwise, they would have the private
party make a citizen's arrest and sign ... over a
request asking the police to act on their behalf.
That's a little cumbersome process. It's not required
in domestic violence cases. It's not required in the
prosecution or investigation of a DUI [driving under
the influence], so those officers may make arrests and
take immediate action with probable cause.
MR. ROBERTS concluded:
Stalking cases take a long time to investigate, and if
they're investigated properly and carefully, ... you
can have a successful prosecution. Part of the
investigation is determining whether it's misdemeanor
conduct or whether it's felony conduct. And there are
a number of things that make a stalking a felony, one
of which is if it's in violation of a protective
order. ... Again, ... that focuses on the people who
have had a relationship or they're in one or have been
in one. There's either familial stalking or stranger
stalking. In this case it was a stranger stalking;
their association was only professional, through work.
... I wanted to just mention that the [MOA] supported
the legislation ... last year ....
Number 2151
THERESA WILLIAMS, President, Pissed Off Parents (POP), said that
[members of] POP support HB 1 because they feel it will directly
affect their children, specifically their teenagers. She
elaborated by noting that sometimes high school students or
junior high school students stalk another student because they
mistake that action for love. She relayed that she doesn't see
any reason why she should not be able protect her daughter by
getting a restraining order on some boy who tries to follow her
daughter everywhere she goes because he has decided to make her
the object of his affection.
Number 2100
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), referred to the ACS's indeterminate fiscal note, and
explained that although the ACS thinks that HB 1 will have some
sort of an impact, that impact might not be a significant one.
He noted that HB 1 is similar in many respects to the domestic-
violence protective-order bill that passed the legislature in
1996; he pointed out, however, that that bill wound up impacting
the ACS far more than was anticipated. On the other hand, he
added, HB 1 is much more narrowly drawn in that it applies only
to the crime of stalking and only to a small subset of victims
of the crime of stalking, those who do not already have some
sort of domestic relationship with the stalker. People who are
being stalked by someone with whom they do have some sort of
domestic relationship can already get a regular protective
order.
MR. WOOLIVER said that one of the reasons the ACS is uncertain
how much of an impact HB 1 will have is that it is still not
known just how much stalking occurs outside of a domestic
violence context. Another reason is that the boundaries of the
crime of stalking itself are not yet clearly drawn;
notwithstanding the 1996 [Alaska] Court of Appeals decision in
[Peterson v. State of Alaska], in which the constitutionality of
the stalking statute was upheld, the crime of stalking itself is
not clearly defined. One area of concern that the ACS has, he
remarked, is that occasionally bills which are passed for a
specific reason end up being used for reasons other than what
was anticipated at the time of passage, thus creating
inadvertent consequences. He assured the committee that he did
not want to overstate the ACS's concerns, adding that it is only
against the backdrop of having significantly underestimated the
last piece of legislation related to protective orders that he
has raised these issues and attached the indeterminate fiscal
note.
Number 1870
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said the ANDVSA continues to
support the efforts of Representative Crawford and others to
create protective orders for victims that are not victims of
domestic violence. She went on to say:
Stalking is a very serious crime. It's pretty easy to
know when it's happening; it's more difficult to prove
..., by a clear and convincing standard, to get into
the criminal courts. We believe that the
preponderance of the evidence standard is a fair
standard. It will allow a civil remedy for victims;
it will give them some way to gain some level of
approximate justice that, ... even now, they're not
able to obtain. It informs the stalker that his or
her behavior is unacceptable; it puts them on notice
that what they're doing is not something that the
community will tolerate.
We've had examples of teachers stalking students,
we've had examples of business partners stalking,
[and] we've had examples of people in some service
organization - whether it's a postal clerk or a
grocery attendant who sees and fixates on somebody who
maybe is a neighbor down the street or somebody who
just comes into their business. There's also a
particular concern for us in that we have batterers
who will follow advocates home, or try to find out
where their home is - they follow them from the
shelters. And there's no relief for any of these
kinds of situations.
We think it's important to contain all three elements:
[the] different kinds of protective orders. Emergency
protective orders are primarily used at night or on
weekends, when many courts around the state are not
open; I understand that's different in Anchorage, but
that's not the case in most other areas of the state.
And we're hopeful -- I understand there may be an
amendment forthcoming today, to place the protective
orders in the regular central registry of protective
orders. This will allow law enforcement across the
state to be aware of protective orders, whether or not
they were entered in the community where the law
enforcement [officer] has been called to the incident.
We very much support that element being added into the
bill.
Number 1759
REPRESENTATIVE GRUENBERG remarked that when first looking at HB
1, he had originally thought that another approach would be to
simply extend the domestic violence statute to cover these kinds
of situations, though he was not sure how easy that would have
been, since the domestic violence chapter contains other
elements. He said that he would like to see the protections
encompassed in the domestic violence statute extended to "these
people" as much as possible. He remarked that sometimes in
order to get legislation passed, it is necessary to raise public
awareness of a problem. He surmised that perhaps one of the
reasons victims don't just rely on the criminal system is
because that system is so overburdened, adding that [HB 1]
allows people to go in [pro se] and get these orders civilly by
filling out a form and having a hearing and getting in front of
a judge and then getting some immediate relief. And it's
cheaper, it's simpler, it's quicker, and it's very effective, he
remarked.
REPRESENTATIVE HOLM asked whether violating a protective order
is a felony.
REPRESENTATIVE GRUENBERG explained that such a violation would
only constitute a class A misdemeanor, and pointed out that at
the top of page 5 of HB 1 - in proposed AS 18.65.865(b) - the
language pertaining to what a protective order form must include
clearly states that the following warning be printed in boldface
type: "Violation of this order may be a misdemeanor, punishable
by up to one year of incarceration and a fine of up to $5,000".
REPRESENTATIVE HOLM asked whether simply owning a gun would
violate a protective order.
REPRESENTATIVE GRUENBERG explained that if a domestic violence
protective order specifically prohibits a person from owning a
gun, then, yes, that would be a violation of that particular
protective order and perhaps "the federal firearms law" as well.
He observed, however, that the provisions in the domestic
violence protective order statutes which pertained to firearms
were not carried over to the stalking protective order
provisions of HB 1.
Number 1540
REPRESENTATIVE GRUENBERG, referring to the language in a portion
of the domestic violence protective order statute - specifically
AS 18.66.100(c)(1) - asked why the term "harassment" was not
specifically included in HB 1 as one of the prohibited
behaviors. He pointed out that in Ms. Wells's case, the stalker
repeatedly harassed her and her children.
MS. HUGONIN said that according to her recollection, they had
limited HB 1 to stalking in order to keep the scope of the bill
narrow and increase its chances of passing. She pointed out
that on the petition for a protective order, incidents of
harassment can be included, thus allowing the judge to consider
that behavior when reviewing the petition.
REPRESENTATIVE COGHILL mentioned that including "harassment"
might have required a different standard of proof.
REPRESENTATIVE GRUENBERG, referred to page 2, lines [27-29], and
asked why, on the protective order, individuals in the household
other than the petitioner must be specifically named by the
court, as opposed to simply allowing the judge to say, "other
members of the same household living in the house."
MS. HUGONIN offered that perhaps it is because that language
merely reflects the common practice for existing types of
protective orders, adding that [petitioners] felt more
comfortable with the judge actually writing down the names.
REPRESENTATIVE GRUENBERG, referring to AS 18.66.100(c)(5), asked
whether any thought has been given to adding language
prohibiting a stalker from following a propelled vehicle [in the
possession of or occupied by the petitioner].
REPRESENTATIVE COGHILL posited that such a stipulation could be
specified in the [protective] order.
REPRESENTATIVE GRUENBERG pointed out, however, that the language
on page 2, beginning on line 24, specifies what the protective
order "may" include. He opined that use of the term "may" makes
the list exclusive, and surmised, therefore, that unless
something is specifically included in that list, it cannot be
stipulated in a protective order.
Number 1151
CHAIR McGUIRE suggested that language on page 2, lines 27-29,
could be interpreted broadly enough to address that issue.
REPRESENTATIVE GRUENBERG noted, however, that that language
refers to types of communication; thus, he opined, it would not
include prohibiting the stalker from following a petitioner's
vehicle. In response to a question, he said that he would not
consider following someone's vehicle to be a type of
communication, adding that the only question that remains is
whether that behavior is technically a type of stalking.
REPRESENTATIVE CRAWFORD remarked that the Department of Law
advised against including language pertaining vehicles. He,
too, relayed that he wanted to keep HB 1 narrow in order to
increase its chances of passing.
REPRESENTATIVE GRUENBERG referred to AS 18.66.100(c)(13) - (16).
He noted that paragraph (13) allows the domestic violence
protective order to require the reimbursement of "expenses
associated with the domestic violence, including medical
expenses, counseling, shelter, and repair or replacement of
damaged property". He suggested that the sponsor might wish to
include similar language in the provisions of HB 1. He asked
Ms. Wells if such language would have been helpful in her case.
MS. WELLS indicated that since she was already determined to
take steps to ensure her family's wellbeing and had access to
free resources, such language was not necessary in her
situation.
REPRESENTATIVE GRUENBERG returned to AS 18.66.100(c)(13) - (16)
and suggested that the sponsor give consideration to perhaps
including similar language in HB 1. On a different issue, he
remarked that it appears that under HB 1, a stalking protective
order would only last six months, without provision for an
extension.
MS. HUGONIN pointed out that nothing precludes the victim from
applying for another six-month stalking protective order if
he/she feels it's necessary.
Number 0936
REPRESENTATIVE GRUENBERG asked Ms. Hugonin whether many victims
of stalking will need to get an extension. He made the
observation that stalking behavior can go on for quite a long
period of time.
MS. HUGONIN replied:
I think we don't have the experience yet, so it could
be that in a couple of years we come back and say,
"It's still not enough." But ... our hope is that
within that six-month period of time, there's going to
either be a recognition on the stalker's part - which
is less likely - that that behavior is wrong and they
need to stop it, or there's going to be enough
evidence gathered that a criminal case can be pursued.
So this is a protection, when we hope that we can have
another level step in and help. And I don't know the
answer to your question.
REPRESENTATIVE GRUENBERG remarked that stalkers are quite
difficult to treat.
MS. HUGONIN agreed.
REPRESENTATIVE COGHILL asked how HB 1 will work for instances of
stalking between juveniles, especially the ex parte provisions.
MS. HUGONIN said that a large part of how the judge or
magistrate will make that determination will be through
information [he/she] receives from the petition itself. Thus
one way of getting adequate information is through the petition
process. She that when the court-forms committee, in which the
ANDVSA participates as a consumer group, created the domestic
violence protective order, the committee made an effort to have
the form ask the questions in such a way that the most
information possible would be placed before the judges and
magistrates that have to make the decisions about the orders.
She remarked that ex parte orders are limited in time so that a
petitioner has an opportunity to get a regular order, at which
time the respondent also has an opportunity to come before the
judge and put forward his/her side.
REPRESENTATIVE COGHILL mentioned that sometimes at or after
interscholastic sporting events, both parents and their children
can get caught up in school/team rivalries and do very mean
things to one another. He indicated that he did not want to see
HB 1 come to be used as a tool of retribution in those
circumstances.
Number 0557
MS. HUGONIN pointed out that with regard to stalking protective
orders, judges and magistrates will be looking at the definition
of stalking to ensure that orders are granted only in the
situations that warrant them. She posited that the
circumstances described by Representative Coghill would not rise
to the level of stalking, which is described as repeated
behavior. She relayed that the court-forms committee is very
conscientious about looking at legislative intent in order to
understand what the legislature is trying to accomplish with its
legislation.
REPRESENTATIVE COGHILL indicated that it is important that
protective orders be used for protection, not revenge.
MR. ROBERTS, regarding comments made earlier, clarified that the
standard used will be a finding of probable cause, not a
preponderance of the evidence. He, too, surmised that the court
will be able to ferret out the issues and ensure that orders are
only granted for a finding of probable cause. He also confirmed
Ms. Hugonin's comments regarding the time limits of ex parte
orders.
CHAIR McGUIRE noted that Lieutenant Leveque with the Alaska
State Troopers is available for questions.
Number 0184
CHAIR McGUIRE made a motion to adopt Amendment 1, which she
called a conforming amendment and which read [original
punctuation provided]:
AS 18.65.740(c) is amended to read:
(c) In this section, "protective order" means an order
issued or filed under AS 18.65.850 - 18.65.870 or
AS 18.66.100 - 18.66.180.
[Note that the statute being amended is actually AS
11.56.740(c).]
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being no objection, Amendment 1 was adopted.
CHAIR McGUIRE then drew attention to Amendment 2, which read
[original punctuation provided]:
AS 18.65.540(a) is amended to read:
(a) The Department of Public Safety shall maintain a
central registry of protective orders issued by or
filed with a court of this state under AS 18.65.850 -
18.65.870 or AS 18.66.100 - 18.66.180. The registry
must include for each protective order the names of
the petitioner and respondent, their dates of birth,
and the conditions and duration of the order. The
registry shall retain a record of the protective order
after it has expired.
CHAIR McGUIRE noted that this language was in a prior version of
the legislation, but was taken out due to fiscal concerns. She
indicated that [the state] has since received a federal grant,
under the Violence Against Women Act, for the purpose of
creating a central registry. This central registry now tracks
existing protective orders, and she remarked that it is very
important to maintain it so that [law enforcement can keep up to
date]. She mentioned that the House Finance Committee may want
to look at this issue further because of the federal monies.
REPRESENTATIVE HOLM said that he is assuming that an ex parte
order does not require the level of proof that he suggests is
necessary when creating "this kind of a list."
TAPE 03-5, SIDE A
Number 0020
REPRESENTATIVE HOLM indicated that he is concerned that this
list will be like the sex offender registry but without the
people on it actually being convicted of anything, since
protective orders are granted merely as a protective measure
rather than because somebody is convicted of a crime.
CHAIR McGUIRE noted that the central registry of protective
orders already exists, and that Amendment 2 would merely allow
stalking protective orders to be included in that registry. She
also noted that for each protective order, the registry requires
information about the conditions and duration of the order. She
pointed out that there is a process for appeal should the
respondent feel that the order was issued in error.
REPRESENTATIVE HOLM said he is merely taking issue with the
presumption of guilt.
MS. HUGONIN explained that for an ex parte order, the standard
is probable cause, which is a step above a preponderance of the
evidence and a step below clear and convincing [evidence].
Therefore, she remarked, it is a higher level than to get "the
regular order." She also pointed out that the central registry
of protective orders is not an open registry available to the
general public. It is only available to law enforcement and,
thus, it is not analogous to the sex offender registry.
REPRESENTATIVE GRUENBERG relayed his understanding that in a
criminal setting, the standard of probable cause is whether the
evidence would support a conviction if that were the final state
of the evidence. He asked Mr. Roberts if his understanding is
correct.
MR. ROBERTS said that it sounds as though Representative
Gruenberg is referring to Rule 5 of the Alaska Rules of Criminal
Procedure. He indicated his understanding of the standard of
probable cause to be: would a reasonable person believe, based
upon the facts and circumstances presented, that, one, a crime
has been committed and that, two, the person identified is the
person who committed the crime? He went on to say that he'd
assumed that the standard used for existing domestic violence
protective orders is a preponderance of the evidence, but he has
noticed that HB 1 specifically states that the standard shall be
probable cause.
Number 0356
REPRESENTATIVE GRUENBERG relayed that he merely wanted to
highlight the difference between probable cause and
preponderance of the evidence after an evidentiary hearing. He
posited that the difference is that after an evidentiary
hearing, both sides have been heard, or at least the defense has
been given an opportunity to present its case. On an ex parte
basis, he added, only one side is heard.
MR. ROBERTS said that is correct.
REPRESENTATIVE HOLM remarked that he did not want to go down a
road that convicts folks without due process.
CHAIR McGUIRE relayed that Amendment 2 came at the request of
the sponsor and Ms. Hugonin, with the goal of using some of the
federal monies available. She remarked that the public policy
to create a central registry of protective orders has already
been decided by the legislature; the question at this time is
whether to include stalking protective orders in that registry.
She opined that since the money has already been made available,
it would be useful to do so.
REPRESENTATIVE GRUENBERG said he supports Amendment 2. He
clarified for Mr. Roberts that probable cause is the standard
for ex parte domestic violence protective orders; the standard
in HB 1 is identical to that statutory scheme.
REPRESENTATIVE CRAWFORD mentioned that HB 1 does allow for a
respondent to present his/her case and "have it erased" if
wrongly accused. He remarked that "it also expires after 20
days - it won't be on the registry after that 20 days if the
accused doesn't have it taken off earlier."
REPRESENTATIVE HOLM asked if that 20 days is related to the ex
parte order.
CHAIR McGUIRE remarked that an ex parte order is granted only
because of the immediacy of the problem, the notion being that
at the end of that 20 days, a victim will have to come forward
with more evidence.
REPRESENTATIVE HOLM relayed his concern that the name in the
registry terminates at that time as well.
Number 0594
REPRESENTATIVE GRUENBERG noted that the existing statute
regarding the central registry is displayed in Amendment 2.
REPRESENTATIVE COGHILL observed that a portion of that existing
statute says, "The registry shall retain a record of the
protective order after it has expired."
CHAIR McGUIRE surmised, then, that Representative Crawford's
comment that an instance of a protective order will simply be
erased from the central registry after it expires is incorrect.
The current statute specifically states that the record shall be
retained. She acknowledged that although the committee may wish
to address that issue [in the future], it is not specifically a
part of HB 1 and Amendment 2 merely addresses whether to add
stalking protective orders to the existing registry.
Number 0678
CHAIR McGUIRE made a motion to adopt Amendment 2 [text provided
previously]. There being no objection, Amendment 2 was adopted.
Number 0690
REPRESENTATIVE ANDERSON moved to report HB 1, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 1(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 0717
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:47 p.m.
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