HB 359 - SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE 2:02:30 PM CHAIR GATTO announced that the final order of business would be HOUSE BILL NO. 359, "An Act relating to conspiracy to commit human trafficking in the first degree or sex trafficking in the first degree; relating to the crime of furnishing indecent material to minors, the crime of online enticement of a minor, the crime of prostitution, and the crime of sex trafficking; relating to forfeiture of property used in prostitution offenses; relating to sex offender registration; relating to testimony by video conference; adding Rule 38.3, Alaska Rules of Criminal Procedure; and providing for an effective date." 2:04:17 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), noted that she'd described the provisions of HB 359 during its last hearing, and, in response to a question, explained that AS 11.66.110 - currently addressing the crime of promoting prostitution in the first degree, and which Sections 7 and 8 of the bill would change to instead address the crime of sex trafficking in the first degree - stipulates that a reasonable mistake as to the age of the victim is not a defense; and that this is similar to the stipulation provided in Section 6 - proposing to add a new subsection (c) to AS 11.66.100, which addresses the crime of prostitution - that the age of the victim is not a circumstance that requires proof of a culpable mental state. She mentioned that the [Alaska] Court of Appeals - in Bell v. State - recently upheld the stipulation in AS 11.66.110. REPRESENTATIVE HAWKER mentioned that questions he'd had regarding the differences between the proposed statutory references in Section 12's proposed AS 11.66.140 and those in Section 13's proposed AS 11.66.145 have since been addressed. MS. CARPENETI, in response to questions, clarified that under the changes proposed by [Sections 5 and 6] to AS 11.66.100 - again, addressing the crime of prostitution - it would be a class C felony to be the "patron" of a prostitute who is under 18 years of age if the "patron" is at least three years older than his/her victim, and, again, the prostitute's age wouldn't be a circumstance that requires proof of a culpable mental state, meaning that it wouldn't matter what age the "patron" thinks his/her victim is; furthermore, that statute - both existing and as proposed under the bill - does not currently provide for an affirmative defense based on a reasonable mistake as to the age of the victim. Under the bill, if the prostitute - the victim - is instead 18 years of age or older, a violation of that statute would remain a class B misdemeanor, though comments received from the Public Defender Agency (PDA) indicate that Section 6 ought to be changed in order to clarify that the proposed increase in penalty to a class C felony only applies to the "patron," not the victim. In addition to reiterating that AS 11.66.110 stipulates that a reasonable mistake as to the age of the victim is not a defense, she also mentioned that with regard to Alaska's sexual assault and sexual abuse of a minor crimes, AS 11.41.445(b) states: (b) In a prosecution under AS 11.41.410 - 11.41.440, whenever a provision of law defining an offense depends upon a victim's being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant (1) reasonably believed the victim to be that age or older; and (2) undertook reasonable measures to verify that the victim was that age or older. MS. CARPENETI, in response to further questions, indicated that she would be amenable to perhaps adding similar affirmative- defense language to the bill's proposed AS 11.66.100, though another option, she ventured, would perhaps be to instead add a culpable mental state of criminal negligence to that provision. REPRESENTATIVE GRUENBERG expressed concern with that provision's current lack of an affirmative defense for the perpetrator. 2:12:35 PM CHAIR GATTO pointed out that when a perpetrator makes an assumption with regard to his/her victim's age, the perpetrator is taking a pretty big risk; and expressed disfavor with the [oft-heard] excuse, "Well, I had no idea she was that young." MS. CARPENETI, in response to further comments and questions, explained that the purpose of the bill's proposed changes to AS 11.66.100 is to protect children who are being victimized by persons promoting prostitution - or, the crime of sex trafficking, as that activity would be called after passage of the bill; the statutes pertaining to that crime embody a different societal interest than those pertaining to sexual assault and sexual abuse of a minor crimes. She again noted that the statute pertaining to the first degree crime - AS 11.66.110, violations of which are [either a class A felony or] an unclassified felony - does not provide for an affirmative defense based on a reasonable mistake as to the age of the victim; and that she would be amenable to perhaps adding affirmative-defense language to the bill's proposed AS 11.66.100. Again, the goal of Sections 5 and 6 is to protect children from adults who would victimize them. MS. CARPENETI reiterated that another option - if the committee is not in favor of the changes currently provided by Sections 5 and 6, or of adding affirmative-defense language - could be to perhaps instead add a culpable mental state to the bill's proposed AS 11.66.100, thereby requiring the state to prove beyond a reasonable doubt that the "patron" acted with criminal negligence - or with some other culpable mental state as the committee prefers - with regard to the age of the victim. In response to comments, she confirmed that providing for an affirmative defense puts the burden of proof on the defendant, whereas providing for a culpable mental state would keep the burden on the state; and reiterated that under the changes currently proposed by [Sections 5 and 6] to AS 11.66.100, it would be a class C felony to be the "patron" of a prostitute who is under 18 years of age if the "patron" is at least three years older than his/her victim, but otherwise violations of that statute would remain a class B misdemeanor. CHAIR GATTO surmised that a mistake as to age will always be offered as a defense by people who get caught having sex with children. 2:18:35 PM REPRESENTATIVE PRUITT opined that it's important to understand the rationale for making it a felony to be the "patron" of a prostitute who is under 18 years of age, that being that generally such children have not become prostitutes of their own free will but have instead been forced into it by people engaged in sex trafficking. This has become a huge problem in rural Alaska, in that children from the villages, after being presented with "an opportunity" to come to the big city, are then being forced into becoming sex slaves once they arrive. The changes proposed by Sections 5 and 6 of the bill are intended to address this problem, and serve as a deterrent. In conclusion, he indicated disfavor with providing for an affirmative defense based on a mistake as to the age of the victim, because the goal is to protect children from having their lives ruined by being turned into sex slaves. REPRESENTATIVE GRUENBERG continued to express concern with the lack of an affirmative defense based on a reasonable mistake as to the age of the victim, and offered a hypothetical example involving a member of the military who pays a child to have sex with him. REPRESENTATIVE PRUITT again remarked on the potential for the bill's proposed changes to AS 11.66.100 to serve as a deterrent to such people. REPRESENTATIVE KELLER pointed out that in Representative Gruenberg's hypothetical example, the military member is still a predator. He expressed favor with making such behavior a class C felony as Sections 5 and 6 - as currently written - are proposing to do. MS. CARPENETI, in response to a question, explained that the maximum sentence for a class C felony is five years. She concurred that in Representative Gruenberg's hypothetical example, the military member is a predator. The governor, in proposing these changes to AS 11.66.100, she relayed, is trying to address the problem described by Representative Pruitt, trying to get at those who are willing to take the risk that the person they are paying to have sex with is a child. 2:24:19 PM REPRESENTATIVE HOLMES made a motion to adopt Conceptual Amendment 1, to delete Section 20 in its entirety and renumber the remaining sections accordingly. REPRESENTATIVE KELLER objected for the purpose of discussion. REPRESENTATIVE HOLMES explained that Section 20 is proposing to add to AS 12.63.100(6) - which defines the term, "sex offense" for purposes of requiring a person in Alaska to register as a sex offender or child kidnapper - a new subparagraph (D) that would additionally define a sex offense as being a crime in another jurisdiction that requires the person to register as a sex offender or child kidnapper in that other jurisdiction. The rationale for deleting Section 20, she relayed, is that other jurisdictions that maintain a sex offender registry sometimes criminalize behavior that isn't illegal in Alaska, and thus under Section 20, the Alaska State Legislature's authority to decide what behavior should or shouldn't constitute a registrable offense would be delegated to all those other jurisdictions. That doesn't quite seem right, she concluded. REPRESENTATIVE HAWKER expressed favor with Amendment 1, adding that he thinks it's wrong for the legislature to abdicate its responsibility as a law-making body. He mentioned, though, that he would be amenable to perhaps adding certain specific offenses to AS 12.63.100(6). REPRESENTATIVE HAWKER also mentioned that if Conceptual Amendment 1 is adopted, he would be offering an additional amendment to "zero out" the Department of Public Safety's (DPS's) fiscal note of $124,200, because it's based solely on the anticipated fiscal impact Section 20 would have on the department. In response to a question, he drew members' attention to the indeterminate fiscal notes accompanying HB 359. CHAIR GATTO observed that a letter from the American Civil Liberties Union of Alaska (ACLU of Alaska) in members' packets indicates opposition to Section 20, with page 6 of that letter stating in part, "Section 20 Is Unwise; It Shackles Alaska's  Policy to Every Other Jurisdiction". REPRESENTATIVE HOLMES pointed out that if someone is convicted of a registrable offense in another jurisdiction, and that offense is similar to a registrable offense in Alaska, then [under existing AS 12.63.100(6)] the person would still be required to register in Alaska; this would not change under Conceptual Amendment 1. In comparison, the language Section 20 is proposing to add doesn't' specify that the offense in that other jurisdiction has to be one that is similar to a registrable offense under Alaska law. 2:32:33 PM KATHRYN MONFREDA, Chief, Criminal Records and Identification Bureau, Division of Statewide Services, Department of Public Safety (DPS), in response to questions, after noting that she is responsible for managing Alaska's sex offender registry, mentioned that the courts have already addressed the issue of who may be required to register as a sex offender, and that sometimes other jurisdictions do notify Alaska when someone who formerly had to register in Alaska then registers in their jurisdiction; acknowledged that perhaps some sex offenders leave Alaska in search of a jurisdiction in which they won't have to register; and indicated that to the DPS's knowledge, that isn't a widespread problem. REPRESENTATIVE KELLER said he was going to remove his objection to adopting Conceptual Amendment 1, expressed agreement with the ACLU of Alaska's aforementioned point regarding Section 20, and asked Ms. Carpeneti to comment. MS. CARPENETI said that the other side of the argument is that if sex offenders from other states are able to avoid registering in their "home" state simply by coming to Alaska, then Alaska will become the place where sex offenders move to in order to avoid having to register as sex offenders. This is a public safety issue for the legislature to make a decision about, but the DOL's position, hence the inclusion of Section 20's proposed change to 12.63.100(6), is that it is in the public interest not to have Alaska become a state where people who have to register in other states come because they won't have to register here. REPRESENTATIVE KELLER acknowledged that point, but offered his understanding that there are already other ways of keeping track of people who move to Alaska with a criminal record. MS. CARPENETI said she is not familiar with any such procedure. Only when a person who's moved to Alaska commits a crime in Alaska is the state then able to take steps to research the person's criminal record. 2:37:25 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), concurred - absent such a person voluntarily contacting the state, law enforcement officers would have no way of knowing of his/her presence in the state until they have a specific reason to contact him/her and investigate his/her background. CHAIR GATTO remarked that the objection was removed, ascertained that there were no further objections, and announced that Conceptual Amendment 1 was adopted. 2:40:02 PM REPRESENTATIVE HAWKER made a motion [to adopt Conceptual Amendment 2, to adopt a zero fiscal note in place of fiscal note number 6 from the Department of Public Safety]. He again offered his understanding that that fiscal note's estimated impact on the DPS is based solely on Section 20, which has been deleted. 2:40:57 PM DAVID SCHADE, Director, Division of Statewide Services, Department of Public Safety (DPS), confirmed Representative Hawker's understanding. REPRESENTATIVE GRUENBERG [although no objection had been stated] removed his objection. CHAIR GATTO ascertained that there were no objections, and announced that Conceptual Amendment 2 was adopted. REPRESENTATIVE HOLMES offered her belief that HB 359 requires further work. CHAIR GATTO relayed that HB 359 [as amended] would be held over.