HB 14-ASSAULT; SEX OFFENSES; SENT. AGGRAVATOR  2:37:39 PM CHAIR CLAMAN announced that the final order of business would be HOUSE BILL NO. 14, "An Act relating to assault in the first degree; relating to sex offenses; relating to the definition of 'dangerous instrument'; and providing for an aggravating factor at sentencing for strangulation that results in unconsciousness." [Before the committee was CSHB 14(STA), version 31-LS0182\G.] Chair Claman recognized the presence of Representative Lincoln, the bill's prime sponsor. 2:38:37 PM CHAIR CLAMAN passed the gavel to Vice Chair LeDoux. CHAIR CLAMAN moved to adopt Amendment 1, labeled 31-LS0182\G.5, Radford, 4/10/19, which read as follows: Page 2, lines 22 - 23: Delete "causing the victim to come into contact  with ejaculate" Insert "ejaculating on the victim" Representative Stutes objected for purposes of discussion. 2:39:02 PM LIZZIE KUBITZ, Staff, Representative Matt Claman, Alaska State Legislation, said Amendment 1 was the result of conversations with the prime sponsor's office, the Office of the Public Defender, and others. She said the current version of the bill adds "knowingly causing the victim to come into contact with ejaculate" to the definitions of sexual contact. However, she explained, it was determined that this language could result in unintended consequences. For example, she said, if a juvenile were to throw a towel on someone and that towel had ejaculate on it, the juvenile could potentially be charged with sexual assault. She stated that Amendment 1 seeks to avoid those unintended consequences by amending the language to read "knowingly ejaculating on the victim." She opined that this language better fits the goals of the bill. 2:40:43 PM VICE CHAIR LEDOUX established a hypothetical scenario in which the defendant, instead of ejaculating on the victim, ejaculated in the vicinity of the victim and then forced the victim to come into contact with the ejaculate. She queried, "That wouldn't be covered here, would it?" MS. KUBITZ said the intention of Amendment 1 is to focus on the action as opposed to "coming in contact with the ejaculate," in order to avoid criminalizing behavior that the prime sponsor and/or the committee may not want to criminalize. VICE CHAIR LEDOUX returned to the example of the juvenile and the towel. She suggested that there could be another way to address the issue that would distinguish between a juvenile offender and an adult offender. She expressed doubts that this particular change is the solution. CHAIR CLAMAN noted that Amendment 1 does not change the crime of harassment, which he suggested would apply in the circumstances described by Representative LeDoux. He said the question is, "Where are we going to draw the line between felony conduct and misdemeanor conduct?" He noted that Representative LeDoux's question reflects the reality that decisions must be made regarding where that line gets drawn. REPRESENTATIVE EASTMAN said HB 14 was in part inspired by public outcry relating to sexual acts not currently categorized as sex crimes. He said the public wants legislators to make the laws match its expectations. He said he does not know if this language accomplishes that. 2:44:06 PM REPRESENTATIVE STUTES withdrew her objection. VICE CHAIR LEDOUX added her own objection. 2:44:27 PM REPRESENTATIVE WOOL asked a question relating to the crime of harassment. He said other bodily fluids have been thrown at people for the purposes of harassment. He asked, "How do you differentiate that from a sex crime, if you don't want to pass this amendment?" VICE CHAIR LEDOUX said she cannot answer that. She stated she does not support Amendment 1 in its current form. CHAIR CLAMAN said the genesis of HB 14 was the public concerns that arose from the Justin Schneider case relating to strangulation, which is not a sex crime on its own, and to ejaculation onto a strangulation victim, which is not currently a sex crime due to a loophole. He stated that the resulting effort of HB 14 was to change the Schneider loophole so that the conduct in that case could be the basis for a sex crime. He said the challenge becomes ensuring that the legislative language drafted does not become so broad that it brings in conduct that sounds more like harassment and less like a sex crime. He said the language in Amendment 1 was recommended by the former Public Defender to effectively close the Schneider loophole while avoiding overbreadth problems. 2:47:50 PM REPRESENTATIVE EASTMAN proposed Conceptual Amendment 1 to Amendment 1. He proposed a two-part test in which the individual intentionally ejaculates in the presence of someone and afterward knowingly causes that person to come into contact with the ejaculate. He said the reason for this proposal is that the public outcry refers to any situation in which both parts of that test are met. He said this would allow certain acts to be considered as sex crimes while avoiding the inclusion of the conduct of "teenage boys in bathrooms horsing around." CHAIR CLAMAN said he does not support Conceptual Amendment 1 to Amendment 1. He noted that Amendment 1 is supported by the Alaska Network on Domestic Violence & Sexual Assault (ANDVSA). He said ANDVSA believes Amendment 1 adequately addresses those concerns. He stated that the public is concerned about the loophole. He said HB 14 would close the loophole whether or not it precisely addresses every question of every public member." He added that the legislators need to make effective legislation that does not create more confusion and more ambiguity. He suggested that Representative Eastman's proposal would make things more confusing and more difficult to apply. VICE CHAIR LEDOUX said the proposed amendment might close the loophole for the exact circumstances of the Schneider case "until another loophole identifies itself." 2:50:20 PM REPRESENTATIVE KOPP noted that harassment in the first degree is in play when the circumstances of harassment in the second degree include substances such as blood, mucus, or semen. He said what elevates harassment in the first degree to the felony level is when it occurs in conjunction with felony assault or felony sexual assault. He noted that if the conduct were not happening concurrently with a felony assault or a felony sexual assault, then the committee would not be looking at making it a registerable felony sex offense. He remarked that there has to be a way to write the law so that it says, "if the act of [harassment in the first degree] occurs in concurrence with [felony assault or felony sexual assault], it is considered a felony,because the harassment is in relation to the assault or sexual assault. VICE CHAIR LEDOUX inquired, "So you're saying, if there is no kidnapping and no assault and someone is just on a date with the wrong person and he ejaculates on her, that that's not a sex crime? CHAIR CLAMAN said that conduct is covered by Amendment 1. VICE CHAIR LEDOUX said she thought Representative Kopp was saying there is no sex crime unless it is in conjunction with some other assault or some other felony. CHAIR CLAMAN said part of the challenge is that all these scenarios become very fact-driven. He noted that a scenario involving an individual who ejaculates on the ground and then pushes someone into it would probably be covered by a physical assault crime for the act of pushing the person down. He said a situation in which someone ejaculates onto another person fits the definition of a sex crime. He said a situation in which someone is not ejaculating on a person sounds more like harassment. 2:54:16 PM REPRESENTATIVE KOPP agreed with Chair Claman's assertion. He said the goal is to encompass all these situations. He said the current language of the bill would address a number of situations by making certain acts sex crimes. He added that misdemeanor-level harassment, when it occurs in conjunction with felony sexual assault or felony assault, should be charged as a felony. VICE CHAIR LEDOUX said her interpretation of the language in Amendment 1 is that the perpetrator needs to ejaculate on the victim as opposed to rubbing the victim's hand in it, or something like that. REPRESENTATIVE KOPP said the Department of Law (DOL) has some discretion. He referenced the totality of circumstances and noted that all sex offenses require a mental state. He opined that trying to capture every possible instance of "horsing around, could end up "stopping language that could do a lot of good. He said he does not want to "see us get too tight" and assume that DOL is not going to exercise its discretion. REPRESENTATIVE LEDOUX said that argument would speak against Amendment 1. REPRESENTATIVE EASTMAN agreed with Representative LeDoux. CHAIR CLAMAN commented that the line-drawing of the legislature is a serious process. He argued that a scenario in which an individual ejaculates on another person is more egregious than a scenario in which an individual ejaculates in the presence of another person. He opined that the job of the legislature is not to try to address "every single thing on the list," but to address "the situation before us." 2:58:21 PM VICE CHAIR LEDOUX addressed Representative Eastman's conceptual amendment and objected to it. REPRESENTATIVE KOPP requested that Representative Eastman repeat Conceptual Amendment 1 to Amendment 1. REPRESENTATIVE EASTMAN said his conceptual amendment captures the language in line 3 ["ejaculating on the victim"] and captures the language in line 2 ["causing the victim to come into contact with ejaculate"], but the language in line 2 is only captured when the ejaculation has taken place in the presence of the victim. He reiterated, "When, having ejaculated in the presence of the victim, the perpetrator causes the victim to come into contact with the ejaculate." REPRESENTATIVE KOPP said the conceptual amendment does not work. He stated that sex offenses are about domination and control. He established a scenario in which a person ejaculates alone in a bed, then runs out of the room to grab the victim and bring the victim into the room to force the victim to have contact with the ejaculate. REPRESENTATIVE EASTMAN conceded that the conceptual amendment does not capture everything. He withdrew Conceptual Amendment 1 to Amendment 1. 3:00:11 PM REPRESENTATIVE LEDOUX maintained her objection to Amendment 1. A roll call vote was taken. Representatives Shaw, Wool, Stutes, Kopp, and Claman voted in favor of Amendment 1. Representatives Eastman and LeDoux voted against it. Therefore, Amendment 1 was adopted by a vote of 5-2. 3:00:56 PM VICE CHAIR LEDOUX returned the gavel to Chair Claman. CHAIR CLAMAN announced that HB 14 will be held for further review.