Legislature(2007 - 2008)CAPITOL 120
02/15/2007 01:00 PM House JUDICIARY
| Audio | Topic |
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| Start | |
| Overview(s): Sex Offender Management in Alaska | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 15, 2007
1:12 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Max Gruenberg
OTHER LEGISLATORS PRESENT
Representative Mark Neuman
COMMITTEE CALENDAR
OVERVIEW(S): SEX OFFENDER MANAGEMENT IN ALASKA
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
TERESA FOSTER, Sexual Assault Prosecutor
Special Prosecutions Unit
Office of Special Prosecutions & Appeals
Department of Law (DOL)
Fairbanks, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
SAM EDWARDS, Deputy Commissioner
Office of the Commissioner - Anchorage
Department of Corrections (DOC)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
DONNA WHITE, Director
Division of Probation and Parole
Department of Corrections (DOC)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
JOHN BODICK, Assistant Attorney General
Legal Services Section-Anchorage
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
RICK SVOBODNY, Chief Assistant Attorney General
Office of Special Prosecutions & Appeals
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the overview regarding sex
offender management in Alaska.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:12:40 PM. Representatives Lynn, Holmes,
Coghill, Samuels, and Ramras were present at the call to order.
Representative Dahlstrom arrived as the meeting was in progress.
Representative Neuman was also in attendance.
^OVERVIEW(S): SEX OFFENDER MANAGEMENT IN ALASKA
1:12:57 pm
CHAIR RAMRAS announced that the only order of business would be
the overview regarding sex offender management in Alaska.
1:17:06 pm
TERESA FOSTER, Sexual Assault Prosecutor, Special Prosecutions
Unit, Office of Special Prosecutions & Appeals, Department of
Law (DOL), explained that her position was created about three
years ago in order that there be someone in the DOL focusing
specifically on sexual offenses - both children and adult cases
- and serious domestic violence (DV) issues connected with
sexual offenses; focusing on multidisciplinary training and
training within the DOL; addressing policy issues; and carrying
a specialized caseload when offices around the state are faced
with cases that are either too complex for [an outlying] office
to handle or contain conflict issues. An example of the latter
would be police officer sex offenders being charged by
[outlying] offices.
MS. FOSTER relayed that she'd recently done a quick survey of
[the DOL's] prosecutors around the state regarding the new
sentencing legislation passed last year - it provided for a huge
increase in sentencing [for sex offenses] - and received near
unanimous feedback that the DOL's prosecutors are very happy
with that increase, are finding it to be a very effective tool,
and are expecting that over time they will be able to measure a
decrease in sex offenses merely by having some of the "perpetual
repeat offenders" put in prison for a long period of time during
which they won't be able to commit new offenses. However,
because that law is so new, there are as yet very few cases that
have been both charged and sentenced under the new law, and so
it is hard to know at this point how things will play out and
what the impact will be.
MS. FOSTER said that what prosecutors are finding in the short
run - with the recent change in sentencing - is that there is a
lot of pressure from the defense to reduce charges or compromise
cases in order to avoid even the first-offense, low-level "sex
penalties" because they are so high; when prosecutors have
evidentiary issues because of investigative problems,
[reductions or compromises] have always been an option in terms
of doing plea agreements, but it's department policy to not
compromise cases just to avoid dealing with high sentences. The
end result is that there will be more cases going to trial, and
the [cases] going through the negotiation process "are staying
there" longer and are becoming difficult to resolve.
MS. FOSTER said that this is going to require better and more
complete investigations of both adult and child sexual assault
cases, and this will put even more of a burden on already-
limited investigative resources, particularly given that the
number of sexual assault cases outside of the major municipal
areas exceeds, in raw numbers, the number of sexual assault
cases in municipal areas. For example, even though the
population in the municipality of Anchorage is approximately 10
times greater than the population in the Bethel region, during
the last four years there were more sexual assault cases
referred from the Bethel region than were referred from the
municipality of Anchorage during that same time period, and yet
the police and investigative resources provided to municipal
areas far exceeds those provided to rural areas.
1:21:49 pm
MS. FOSTER, in response to questions, explained that under the
sexual abuse of a minor statutes - AS 11.41.434 through AS
11.41.440 - it is against the law to have sex with a minor if
those involved are of certain ages and it is the sex act itself
that is the crime regardless of whether it results in pregnancy,
and that although physicians and their staff are mandated
reporters, some medical facilities will avoid asking the name of
the man so as not to be put in a position of having to report
that a crime of sexual assault of a minor has occurred. In
other words, although some people are required to report
instances of sexual assault of a minor, they are under no legal
obligation to ask how old the man in a particular situation is.
MS. FOSTER, In response to further questions, referred the
committee to the statute governing mandated reporters - AS
47.17.010 - and relayed that an entity's profit or nonprofit
status makes no difference in whether its employees are
considered mandatory reporters; that the age of consent to
sexual activity is 16; that in order for the crime of sexual
assault of a minor to occur, the offender has to be at least
four years older than the victim, who in turn must be under the
age of 16; and that incestuous sexual relationships are illegal.
MS. FOSTER, returning to the issue of sex offender management,
said that two of the big problems in rural areas of the state -
which is where the vast majority of sex offenders are located -
is that sex offenders are getting lower sentences - and thus
being returned to the community sooner - and that there isn't
any sex offender treatment available in most rural communities.
CHAIR RAMRAS spoke about the lack of trained medical
professionals in the state, about having attended the "National
Legislative Briefing on Sex Offender Management Policy in the
States" conference in Arkansas, about how unsuccessful
psychiatric treatment is for sex offenders, and questioned how
it can be expected - given Alaska's limited resources - that
offering treatment in rural communities will help. He also
questioned how many registered sex offenders there are in
Alaska, and how many unregistered sex offenders there may be.
He offered his understanding that there is only one trained
polygraph [examiner] available in Alaska, and so even if the
state does come up with a good management plan for sex
offenders, it has no way to monitor them.
1:32:16 pm
MS. FOSTER said she doesn't know the number of registered sex
offenders in Alaska but would research that issue, and noted
that one can search the sex offender registration web site and
sort by zip code; many registered sex offenders have rural
addresses, and in a community of 200 people, for example, there
might be three or four registered sex offenders. The delivery
of services outside of Alaska's hub areas is extraordinarily
expensive - people who provide sex offender treatment are
specialized, it's an unpopular field, and it's hard to keep such
people employed out in remote areas - and there isn't currently
an efficient delivery system in place for such services.
Furthermore, the DOL is finding that many judges don't even
bother ordering sex offender evaluation and treatment as a
condition of probation for these offenders, and so the locations
where the largest number of sex offenses are taking place are
locations that have the lowest amount of treatment if any.
MS. FOSTER, in response to a question, said statistics regarding
recidivism rates vary widely, though there is some belief that
certain kinds of treatment - those that are behavioral focused
or cognitive focused or thinking-error focused - are more
effective than other kinds of treatment. Although sex offenders
are incurable, if there are enough controls on them, they will
be disinclined to act on their desire to have inappropriate
sexual contacts. However, most studies measure success by
recidivism rates - how often somebody re-offends after he/she
has been through a particular kind of treatment - and use a
three- to five-, occasionally eight-, year measurement period,
but for the first part of the measurement period an offender is
in jail and so won't be re-offending, and that leaves only a
short part of the measurement period during which to determine
an offender's recidivism rate.
MS. FOSTER went on to say that when the measurement periods are
less than 10 years, she is not persuaded by claims that there's
been a significant lowering of recidivism rates, particularly
for sex offenders who offend over a lifetime. Furthermore,
there are a lot of studies which indicate that many sex
offenders have multiple victims that were never disclosed, and
the offenders were never caught and arrested for those offenses;
this sort of information is now becoming known through the use
of polygraph testing. Essentially, recidivism studies only
illustrate that an offender has not been caught and arrested for
another offense, not whether the person isn't re-offending.
MS. FOSTER, in response to comments, said that in looking at
both adult and child sexual abuse cases, the vast majority of
sex offenses occur between those who know each other, and that
exclusion-zone approaches generally create more problems than
solutions. In response to a question, she explained that when
the DOL is referred a case from law enforcement and determines
that the basic elements of the offense provide probable cause,
that doesn't necessarily translate into a case that can be
proven beyond a reasonable doubt once it goes to trial.
Especially with sex crimes - regardless of the age of the victim
- one of her main training themes with law enforcement, medical
personnel, and prosecutors is to corroborate the victim's
statement with extraneous evidence; this is because such cases
boil down to it being the statement of one person against the
statement of another person. When [law enforcement] takes the
time to follow up on the initial disclosure and corroborate the
victim's information, it builds a much stronger case, but when
law enforcement, because of a lack of resources, isn't able to
garner that additional information, the DOL may know that it has
a righteous case but because of concerns about the level of
proof, the DOL may be willing to compromise and allow a lesser
plea in order to provide the victim with at least some
accountability.
1:44:24 PM
MS. FOSTER, in response to comments, relayed that [the DOL] does
have a multidisciplinary approach to adult sexual assaults
through use of a sexual assault response team (SART); a victim
advocate, a law enforcement officer, and a medical provider all
come together - generally where the victim's medical examination
takes place - and gather the necessary information from the
victim. This is considered best practices for this field of
investigation. In response to a question, she said that there
are functioning SARTs in most of Alaska's large communities and
in a lot of smaller communities, and that different communities
handle its SART differently; all, though, will have a private
setting in which to conduct the interview and most of the exams
are done by sexual assault nurse examiners (SANEs), which have
been specially trained in all aspects of the physical exam, the
collection of forensic evidence, in victim trauma issues, and in
providing after care.
MS. FOSTER, in response to another question, said that the use
of SARTs has proven to be really helpful in procuring needed
medical information without further traumatizing the victims.
In terms of victim response, shelters are still relaying to the
DOL that many victims still don't report their assaults. One
difference between adult victims and child victims is that adult
victims can choose not to report while still receiving services.
One problem that can then arise is that an adult victim may
chose at first not to report but then have a change of mind
later but the forensic evidence is no longer available. She
offered her understanding that victims who've gone through a
SART process have relayed that they have felt it to be a better
and more supportive process.
1:53:04 PM
REPRESENTATIVE COGHILL said he's been told by the Fairbanks
police department that it has logistical problems with storing
the evidence that officers have collected.
MS. FOSTER said she has found that similar space and storage
problems are occurring throughout the state. Especially with
jurors' expectations being so high with regard to the importance
of forensic evidence, being able to store all the evidence in
sexual assault and DV cases for long periods of time would be
the ideal given that the perpetrators in such cases often re-
offend.
MS. FOSTER, in response to questions, said she is not aware of
any kind of "tiering" of Alaska's sex offender population in
terms of the sex offender registry. In general, the statutes
provide for two types of registration: in addition to being
registered upon release from prison, class B felony sex offenses
and below and single sex offenses warrant an additional
registration period of 15 years starting after an offender is
off of probation, and [class A and unclassified felony sex
offenses] and multiple sex offenses warrant a lifetime
registration period. The sex offense registry lists the offense
that a person must register for, but doesn't show all of a
perpetrator's offenses. There is also quite a bit of evidence
coming in which illustrates that sex offenders cross over into
multiple categories of offenses and therefore can no longer be
classified as particular types of offenders.
MS. FOSTER noted that most sex offenders are able to hide their
abnormal sexual interests, and so although sex offenders may
appear to be "normal" and do come from every walk of life, her
belief is that these people are not "normal" at all but rather
are simply able to blend in very well, and this makes them very
dangerous.
CHAIR RAMRAS expressed an interest in hearing any suggestions
for legislation that would be helpful in identifying, managing,
or prosecuting offenders.
2:04:50 PM
SAM EDWARDS, Deputy Commissioner, Office of the Commissioner -
Anchorage, Department of Corrections (DOC), relayed that a
three-part containment model is currently being used by the DOC;
this model involves treatment, supervision by probation
officers, and polygraph examinations. In response to earlier
comments, he clarified that there are no certified treatment
providers in Alaska's rural areas - such providers are located
exclusively in Anchorage, Fairbanks, Juneau, and Kenai - and
that although there are two individuals who are certified to
conduct [sex offender polygraph exams], neither have conducted
the requisite number of sex offender polygraph exams so as to be
able to function on their own. Currently the DOC is using a
polygraph examiner from Washington who flies up to conduct sex
offender polygraph exams in the [DOC's] pilot program.
MR. EDWARDS acknowledged that having enough treatment providers
and [qualified] polygraph examiners is critical to the program's
implementation - scheduled for July 1 - and so the DOC is
working with the university to offer a master's certification
program for providers of sex offender treatment, and this looks
promising because a provider could be certified after two weeks
of education specific to sex offender treatment. The DOC is
also looking to have the two in-state polygraph examiners be
supervised by an out-of-state polygraph examiner until they have
successfully completed the requisite number of sex offender
polygraph exams - approximately 150 exams. In response to
questions, he said that it takes at least an hour to conduct a
polygraph exam, and that the examiner seeks information specific
to the sex offender.
2:09:06 PM
DONNA WHITE, Director, Division of Probation and Parole,
Department of Corrections (DOC), added that the DOC primarily
uses two different types polygraph exams: one type focuses on
the offender's sexual history, and the other type - called a
maintenance monitoring polygraph - focuses on the offender's
recent behavior. During each polygraph exam, only three
questions are asked. In response to comments, she confirmed
that recent information garnered from polygraph exams indicates
that offenders commit far more offenses than just what they've
been charged with.
MS. WHITE, in response to a question, said that Alaska's
polygraph examination program does not "grade" offenders;
instead, probation officers for sex offenders use a risk
management tool called a Static-99 - which categorizes people as
high-, moderate-, or low-risk offenders - and is part of best
practices and helps the DOC determine what level of supervision
a particular sex offender needs. She explained that prior to a
polygraph exam, an offender's probation officer and treatment
provider discuss what issues have arisen for the sex offender,
and then polygraph exam questions specific to that offender are
developed. There is a pre-polygraph exam during which the
offender is asked general questions, then there is the polygraph
exam itself during which the aforementioned specific questions
are asked, and then there is a post-polygraph exam during which
follow up questions are asked.
MS. WHITE, in response to a question, said polygraph exams are
given to offenders after they are placed on probation/parole and
released back into the community. In response to a further
question, she said that currently, because approved treatment
providers are only located in Anchorage, Juneau, Fairbanks, and
Kenai, only sex offenders in those areas will be subject to
polygraph examinations after July 1.
2:22:05 PM
JOHN BODICK, Assistant Attorney General, Legal Services Section-
Anchorage, Criminal Division, Department of Law (DOL), relayed
that Alaska's model is based on Colorado's model, and that the
DOC's pilot project is testing almost 30 sex offenders. One
legal issue that has arisen is what to do when the offender,
during the exam, indicates that he/she has committed a new
offense, since the Fifth Amendment says that the state can't
compel individuals to be witnesses against themselves. In
Colorado, offenders are given immunity for any information they
divulge during a polygraph examination, thus freeing them to
provide more information to authorities. Alaska has chosen not
to take that approach, and the commissioner of the DOC has
expressed a preference for all new offenses to be reported, but
if an offender raises a Fifth Amendment argument, the state
couldn't proceed further in questioning the offender about the
new offense, and prosecution for that new offense would be
precluded if the state did proceed with questioning. This means
that the State can't explore new criminal behavior or the
person's full sexual history, which is important in determining
treatment and structuring preventative mechanisms.
MR. BODICK, in response to questions, opined that when sex
offenders raise a Fifth Amendment argument during a polygraph
exam, it is appropriate to consider those offenders to be
untreated and uncontained and hence warranting [longer] stricter
probation/parole supervision to ensure public safety. In
response to another question, he indicated that the
administration has determined that it would not be in the
state's best interest to provide immunity to sex offenders for
any information garnered via a polygraph exam. In response to a
further question, he said that the benefit to granting immunity
is that the state would simply get more information about the
offender's history, thus allowing the probation/parole officer
to better manage the offender. Again, the administration has
chosen not to take that approach, and will instead be attempting
to prosecute an offender for any new offenses he/she commits.
In conclusion, he characterized Colorado's polygraph exam system
as a good one, and surmised that it may take some time to get
Alaska's polygraph exam system up and running and resolve any
problems with it.
2:35:45 PM
RICK SVOBODNY, Chief Assistant Attorney General, Office of
Special Prosecutions & Appeals, Department of Law (DOL),
confirmed Mr. Bodick's comments regarding immunity.
2:39:54 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
offered the following suggestions: make it a separate crime
when sex offenders on probation start exhibiting pre-curser type
behaviors that are known to lead to recidivism and are against
conditions of probation; and provide significant extra
investigative resources for rural areas of the state.
MR. SVOBODNY mentioned that interviews with sexual assault
victims in rural areas of the state are currently conducted by
phone because of a lack of resources, and opined that such
interviews should be conducted in person.
MS. CARPENETI offered further suggestions: that more people
involved in the process of investigating and prosecuting sex
offenses - people such as victim advocates, treatment providers,
investigators, prosecutors, and medical personnel - should get
together in order to help identify the biggest needs in solving
the overall problem; that the state should revisit the issue of
providing sex offender treatment in jail because most offenders
will eventually get out of jail and thus the more treatment
that's provided earlier the better.
MS. FOSTER, in response to comments and a question, said that
sex offender programs and tools that work in other parts of the
country, although appropriate to look at and glean from, won't
necessarily work in Alaska as a whole because of its size and
population distribution. In general, though, the more officers
that are out there looking for certain offenses to be committed,
the more offenders that are going to be caught, and surveillance
of sex offenders can be a very effective tool, though it is
labor intensive, which translates into "expensive."
MS. CARPENETI mentioned that in Alaska it is a crime to fail to
register as a sex offender.
MS. FOSTER said that crime includes failing to notify
authorities regarding a change of residence.
REPRESENTATIVE DAHLSTROM surmised that that crime is not
enforced because of a lack of resources.
2:48:06 PM
MS. FOSTER argued that it is enforced, but acknowledged that is
often enforced only when the person is picked up or contacted by
the authorities for some other reason.
MR. SVOBODNY added that a compliance problem can arise when a
sex offender is living on the street and doesn't have an address
that can be listed in the sex offender registry.
REPRESENTATIVE LYNN relayed that he'd found that a new neighbor
of his was an out-of-compliance sex offender, but nothing was
done even months after he notified the authorities of the
offender's whereabouts.
MS. FOSTER acknowledged that she too has had difficulty getting
an officer to file a report and charge an offender she knew to
be out of compliance.
MR. SVOBODNY, in response to comments and questions, said that
the juvenile sex offender statistic is higher than previously
thought; that most large communities have a facility that
specifically deals with juvenile sex offenders and possible
future juvenile sex offenders; and that Alaska is a resource-
poor state with regard to treating such juveniles. If such
juveniles are not dealt with while they are juveniles, he
concluded, it can almost be guaranteed that they will simply
turn into adult sex offenders.
CHAIR RAMRAS asked the administration's representatives to
provide the committee with a report outlining what the
legislature can do to address Alaska's sex offender problem, as
well as with statistics categorized by community.
MS. FOSTER, in conclusion, relayed that about four years ago
she'd interviewed a sex offender born in 1914 who was still
offending.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:01 p.m.
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