SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION  3:39:18 PM CHAIR KELLER announced that the next order of business would be SENATE BILL NO. 170, "An Act relating to a defense to the crime of prostitution for victims of sex trafficking." 3:39:27 PM SENATOR BERTA GARDNER, Alaska State Legislator, speaking as the prime sponsor informed the committee that SB 170 is part of a national effort to provide as a defense against a prostitution charge, the chance to demonstrate to the prosecutor that one has been "trafficked" and forced into prostitution against their will. The bill also allows the prosecutor to prosecute the traffickers. 3:40:43 PM STEVEN HANDY, Staff, Senator Berta Gardner, Alaska State Legislature, in response to Representative Lynn, said a pimp is one who traffics the prostitute and is actually the target of the bill. The purpose is to not "double victimize" the person who is being trafficked, first by the situation and also arrested for prostitution. REPRESENTATIVE LYNN noted that those prostituting do so for many different reasons, and pimps may be coercive, cooperative, or violent. MR. HANDY said if the prostitute - hereafter referred to as the sex traffic victim - evokes the affirmative defense authorized by the bill, the sex traffic victim is obligated to work with the prosecutor and law enforcement to identify the sex trafficker. The affirmative defense would not get the sex traffic victim "off the hook" as the decision regarding charges against the sex traffic victim occurs in court, and not in the field. REPRESENTATIVE PRUITT stated that prostitution takes place for several different reasons, and questioned how the bill would only apply to those who are sex traffic victims. He said, "If there's an individual that's in that, they're just trying to make money ... it's a different scenario ...." MR. HANDY explained the prosecution would determine whether the affirmative defense is valid. The sex traffic victim evoking an affirmative defense would have to identify the sex trafficker, and there would follow an investigation by law enforcement. 3:45:16 PM REPRESENTATIVE PRUITT asked for clarification on whether any instance of prostitution would garner an affirmative defense, which is the "lowest level of challenge ... on a conviction from prosecution to address." MR. HANDY said, "That's a definite no, it would not apply to somebody who was doing this because that's their choice." REPRESENTATIVE LEDOUX pointed out that a prosecutor in a sex trafficking case can choose whether or not to prosecute someone; therefore, an affirmative defense leaves the decision ultimately up to a jury. MR. HANDY explained that the definition of an affirmative defense is that there are situations outside of the charges that could excuse the defendant from the charges. The situation arises after a person is arrested and charged, and the affirmative defense is a tool to get out of the charge. 3:48:21 PM CHAIR KELLER opened public testimony. 3:48:44 PM SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse and Rape Emergencies, Inc. (AWARE), informed the committee that often women who are involved in prostitution are victims of domestic violence and sexual assault who have been coerced into sex trafficking. Senate Bill 170 creates an avenue for victims to come forward, to be believed, and treated with respect. 3:49:49 PM TARA RUPANI, Member, Community United for Safety and Protection, representing herself, said she is a graduate student at the University of Alaska Fairbanks (UAF). Ms. Rupani stated that her research into sex trafficking legislation [House Bill 359] [passed] in 2012, has only been used against alleged prostitutes who were charged with prostitution in connection with sex trafficking cases. For example, in a case with sex trafficking victims, the victims were arrested and prosecuted for prostitution, and during 2012 or 2013, all those who were charged in Alaska under state law were also charged with trafficking. Ms. Rupani said she was disappointed to learn that the proposed legislation would not help any of the victims who have been charged under state law, including Keyana Marshall, who was charged with federal counts of sex trafficking, and would not have been able to access an affirmative defense because multiple sex traffickers were involved. Furthermore, the bill is not intended to help those who have ever willingly engaged in the sex industry, but only those who were induced into prostitution, which creates a fourth legal definition of sex trafficking and a distinction between some victims who are deserving of protection, and others who are not; in fact, all sex trafficking victims in Alaska should have access to protection without being arrested. Ms. Rupani opined that allowing victims of sex trafficking access to protection is the first step to putting sex traffickers in jail, however, "if only good victims can call the police it's actually going to make sex trafficking worse.... ... [Because] they target people that they know who ... already believe that they don't have access to protection from the police." She stated that those who have worked in the sex industry should be able to access protection. She referred to "safe harbor" laws that have been implemented in California and New York, and stressed that criminalizing victims is a huge human rights issue that has been addressed by the United Nations. Ms. Rupani said arresting victims of sex trafficking violates the Trafficking Victims Protection Act, and the proposed bill is not the solution to the situation in Alaska where law enforcement continues to defend its decision to arrest and charge sex trafficking victims. She concluded that, "A law that condemns most victims while purporting to protect only a few victims who are seen as worthy or good is going to increase sex trafficking rather than decrease it in Alaska." 3:55:23 PM REPRESENTATIVE LEDOUX asked whether Ms. Rupani's position is that any prostitute is coerced into prostitution and should not be prosecuted. MS. RUPANI said absolutely not. 3:55:51 PM KAYT SUNWOOD, read Keyana Marshall's statement as follows: The trauma of being forced, coerced into prostitution is a scary shameful situation. This can leave a victim emotionally, mentally, and physically scarred. To criminalize a victim is extremely cruel, however, with no protective laws in place. Such criminalization and punishment is of unethical and immoral proportions. I am familiar with this scenario because it happened to me. It wounded me deeply when members of the APD vice unit ridiculed me for being pimped. As they arrested me and placed me in a vehicle, they said something to the effect of: Our car isn't as nice as the Mercedes Benz your pimp drives. Or things like: I know he wonders where you are, or, Get back to him. I was a human trafficking victim from ages 15 through 21. I have had two abusers take advantage of me. I am now stuck with mental memories of their abusive actions and if that didn't make me feel like I had just no say in my own actions, prison did. Being a victim of abuse shouldn't be a crime. Anyone who is being forced into any prostitution-related activities should not be held liable for crimes committed in reference to prostitution or conspiracy, charges involving prostitution. When we define the word "victim" the definitions are: (1) an unfortunate person who suffers from some adverse circumstance; (2) a person who is tricked or swindled. Unfortunately, I can easily apply these definitions to myself. I was trafficked by a woman whom I used to babysit for. When she disappeared and went to prison, the next perpetrator was an abusive, angry, violent, male. He tore down my spirit and I went to prison for prostitution. These incidents would have not happened had I not been trafficked, drugged, and abused by this man. I spent nearly three years in prison after I agreed to turn state's evidence. I did that hoping someone would identify the problem. Instead I heard things like: Crazy, or Sorry that happened to you. No victims' services were offered to me. I think passing a bill where victims are protected, rather than criminalized and re-victimized, is desperately needed. Please make sure SB 170 truly protects victims, rather than setting up good victim/bad victim, and criminalizing some. As is this bill falls short. If the intent of this bill is to address trafficking, make it safe for those who are sex trafficked, to help end sex trafficking. 3:59:44 PM JON DUKE, Professor, Department of Justice, University of Alaska Fairbanks, informed the committee he was a retired chief of police from California and a consultant to Senator Gardner on SB 170. Mr. Duke urged the committee to support SB 170 for several reasons. The bill changes the way justice is delivered without weakening tools to control vice. Justice professionals are bound to enforce the law, and even when aware that victims of sex trafficking are often forced to break the law, agents of the state may not be able to exercise leniency. Proposed SB 170 is needed to enrich justice by increasing the options available. In addition, SB 170 would raise awareness, reduce stigma and self-recrimination, reduce victims' shame, and empower victims to ask for help to escape their plight, and utilize community resources to heal. Ultimately, victims will feel more comfortable cooperating with police to prosecute traffickers. Mr. Duke urged the committee to support SB 170. 4:02:26 PM MAXINE DOOGAN, Member, Community United for Safety and Protection, informed the committee the Community United for Safety and Protection is a group of sex trafficking victims, current and retired sex workers, and their allies in Alaska. She said she was born and raised in Fairbanks, and her organization opposes SB [170] because it is overbroad in that it puts the burden of proof on the victim who is the defendant in a criminal proceeding. The bill also creates a loophole of arbitrary enforcement which allows the prosecutor to reinstate charges against the sex trafficking victim following the unsuccessful prosecution of sex traffickers. In addition, SB 170 does not offer immunity from prosecution, and she cautioned that there may be the unintended consequences of false accusations. Ms. Doogan said prostitution should not be illegal, and the bill does not provide a way for sex trafficking victims to have their convictions vacated. Finally, SB 170 does not provide any identity protection for sex trafficking victims who are being prosecuted for prostitution. She urged for the removal of the criminalization of prostitution in order to provide access to equal protection under the law, and thereby reduce incidents of exploitation in Alaska. Ms. Doogan said she opposes SB 170. 4:05:14 PM CHAIR KELLER, after ascertaining that no one else wished to testify, closed public testimony. REPRESENTATIVE GRUENBERG asked Mr. Svobodny to describe the quantity of proof required from a defendant to prove an affirmative defense in a criminal case. 4:06:00 PM RICHARD SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law, recalled that the requirement is a preponderance of evidence, and is not "beyond a reasonable doubt." He said he would confirm his recollection as soon as possible. REPRESENTATIVE GRUENBERG cautioned that the bill is written so that the burden of proof will shift to the defendant to prove that they are a sex trafficking victim by a preponderance of evidence - or a level higher - which would be very difficult. He encouraged the sponsor to consider that that may be an insurmountable burden in many cases. REPRESENTATIVE PRUITT agreed that the defendants would be "in a very difficult spot," and may already have concerns that they cannot trust the police or the authorities. He said he agreed with the intent of the legislation, but the bill may put more of a burden on the victims. REPRESENTATIVE LEDOUX disagreed. She suggested that the sponsor and DOL consider adding an element of proof that the prosecutor needs to prove beyond a reasonable doubt that the defendants are not sex trafficking victims. REPRESENTATIVE GRUENBERG reminded the committee of a previously- heard bill related to an affirmative defense for the crime of someone who encounters a victim of a drug overdose. The language used in that bill was that the defendant had to produce some evidence, and the prosecutor had to disprove beyond a reasonable doubt. MR. SVOBODNY interjected that it is a "preponderance of the evidence." [SB 170 was held over.]