SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION  1:44:29 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." SENATOR BERTA GARDNER, Alaska State Legislature, said the discussion on SB 170 at the last hearing was not thorough, because the committee was rushed. Currently, 23 states, and others in progress, offer an affirmative defense against prostitution charges [for victims of sex trafficking]. When she spoke with law enforcement, including the FBI [Federal Bureau of Investigation] and police officers, she found them to be very enthusiastic about this tool for going after traffickers. Those who are opposed are opposed because the legislation does not go far enough, she said. There are some people who want to decriminalize prostitution and vacate previous convictions, she noted, and there are others who want to vacate convictions of trafficking victims and offer immunity for other offenses (sometimes the victims are forced to sell or use drugs, for example). She stated that all of those proposals are worthy, but SB 170 "is not going there." The heart of the bill is to not re-victimize sex traffic victims by prosecuting them for prostitution, and the other is to help law enforcement go after the traffickers, she said. 1:46:51 PM CHAIR KELLER noted that there were two private defense attorneys and a public defender on line. STEVE HANDY, Staff to Senator Berta Gardner, Alaska State Legislature, noted that the main concern voiced at the last hearing was how the affirmative defense would hurt the victim by subjected him or her to intense scrutiny from the prosecution. He explained that the affirmative defense "is just that; it ends right there." The defense must be declared pretrial, and in the trial it is given to the jury, he stated. If the jury believes by a preponderance of the evidence (the lowest form of evidence) that the victim was induced or caused to engage in the act, then the victim is excused at that point. There is no obligation for prosecution or negotiation-"that is it." CHAIR KELLER opened public testimony. 1:48:47 PM SCOTT DATTAN, Defense Attorney, said he does a lot of federal criminal defense work and some state defense work. After discussing the bill with Mr. Handy, he concluded that the legislation was an appropriate thing to do. The affirmative defense should be offered to young women who are pressed into this type of occupation and into illegal conduct, he opined. He said he sees no negative aspect to a defendant, who can choose not to offer the defense. It would, however, be statutorily available if a defendant and her attorney chose to avail themselves of it. 1:50:59 PM WALLY TETLOW, Partner, Tetlow Christie, LLC, said he has practiced criminal defense in Alaska state courts for over 20 years. He opined that SB 170 is important, and it provides an opportunity for an individual charged with prostitution to prove to a jury that he or she was induced to do so by sex traffickers. He stated that the bill does not provide a free pass to engage in prostitution, but it provides an affirmative defense. Regarding the concern of the bill causing victims to make themselves targets of law enforcement and be charged for prostitution, "in actuality, the affirmative defense will not do that-it will have the opposite effect." With law enforcement's support of SB 170, "the last thing that the Department of Law or law enforcement would want" is for the victims to come forward to reveal information about sex traffickers and then law enforcement turns around and punishes those individuals by charging them with offenses. "I don't see that occurring," he stated. 1:53:15 PM MR. TETLOW continued: The way the affirmative defense works in the real world is that at trial the defense must produce some evidence in support of the defense in order to even have the jury decide whether the defense applies. So, the first thing that happens in court is that the defense is required to put on some evidence to justify the jury instruction that would go to the jury and allow the jury to consider the issue. If there is no evidence offered in support of the affirmative defense, the jury never gets the issue, he explained, so that is the first hurdle. The second hurdle is that the jury decides, by a preponderance of the evidence, whether or not the defense applies, and it is the defendant's burden to prove the defense, but the jury's decision. Ultimately the affirmative defense not only plays out at trial, but, in many cases, it will play out before trial, thereby lessening the anxiety and pressure and stress on the victim of sex trafficking. 1:54:37 PM MR. TETLOW noted that normally in criminal cases, long before a case goes to trial, there is a negotiation phase, and, at that time, defense attorneys offer information to the prosecutor in an effort to dismiss charges. Such negotiations are often successful in weeding out cases that should not go to trial, he explained. The hope would be, he said, that in most cases with prostitutes who are victims of sex traffickers, the prosecution will get that information and determine that it is valid and elect to dismiss the charges. 1:55:07 PM MR. TETLOW said he was told there were concerns of adding stress to the victims if they have to testify against the traffickers and be subject to cross-examination. Simply by offering evidence at trial or in the negotiation phase, the victims do not automatically make themselves a witness against the traffickers. He said victims can elect not to cooperate, and they may not always be the best witnesses for the prosecutors or investigators. Law enforcement will want to amass more evidence than just the victims' statements, but their information may allow law enforcement to pursue other avenues of evidence that they might not have been otherwise aware of. CHAIR KELLER asked if a victim chooses not to become a witness, will the affirmative defense still be available. 1:58:12 PM MR. TETLOW said that in the victim's prostitution trial there are a number of ways for the victim to present the affirmative defense. One way, he said, is for the victim to testify on his or her own behalf, but it is not required. There are other ways of establishing the affirmative defense without having the victim testify, he explained. However, he said, his previous comments were more directed at the concern that not only would the victim have to, perhaps, testify in his or her own trial, but he or she would be the subject of a subpoena by prosecutors to testify in other trials [of the traffickers]. 2:00:25 PM CHAIR KELLER closed public testimony. REPRESENTATIVE FOSTER thanked the sponsor for the legislation, and said that not only is it good for all victims across the state, but it is good "particularly [for] Alaska Natives, who come from rural areas and they end up in places where they have little or no support group and are easily influenced." REPRESENTATIVE LYNN concurred with Representative Foster, and he moved to report SB 170 out of committee with individual recommendations and the accompanying fiscal notes. CHAIR KELLER noted no objection, and SB 170 moved out of the House Judiciary Standing Committee. 2:01:36 PM