HB 325-DOMESTIC VIOLENCE  2:13:12 PM CHAIR CLAMAN announced that the final order of business would be HOUSE BILL NO. 325, "An Act relating to domestic violence." 2:13:47 PM REPRESENTATIVE SARA RASMUSSEN, Alaska State Legislature, as prime sponsor, presented HB 325. She stated that HB 325 would incorporate image-based sexual abuse, which may be referred to as "revenge porn," into the definition of domestic violence so it could be prosecuted as harassment in the second degree. 2:14:45 PM CRYSTAL KOENEMAN, Staff, Representative Sara Rasmussen, Alaska State Legislature, on behalf of Representative Rasmussen, prime sponsor, addressed the proposed HB 325. She pointed out the definition related to explicit images contained in the statute, which defines harassment in the second degree, would be moved into AS 18.66.990 (3), which defines domestic violence and crimes involving domestic violence. She stated that the proposed legislation would not modify the definition as it pertains to explicit images and distributing them. It would only move the definition into the domestic violence statutes so it can be used to protect victims. 2:16:29 PM LOREE MORTON, Advocacy Initiatives Director, Alaska Network on Domestic Violence and Sexual Assault, provided invited testimony in support of HB 325. She stated that the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) supports adding to the domestic violence statute this element of harassment in the second degree. She stated that, per the proposed legislation, a crime involving domestic violence would include publishing or distributing electronic or printed photographs, pictures, or films which show the genitals, anus, or female breast(s) of the other person, or show a person engaged in a sexual act. She expressed the opinion that abusers will use any means to control partners and to coerce partners into doing, or not doing, certain things, to benefit the abuser. She stated that the use of the media described could cause ridicule, embarrassment, shame, and degradation. She suggested that this could be used to keep the victim trapped in an abusive situation. 2:18:31 PM REPRESENTATIVE SNYDER expressed the understanding that the sharing of such images is already a crime, but it is not considered a crime of domestic violence. MS. KOENEMAN confirmed this as correct. REPRESENTATIVE SNYDER questioned whether there would be any changes in penalty or punishment. REPRESENTATIVE RASMUSSEN answered that the important change would be victims could petition for a restraining order. 2:20:12 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Department of Law, provided invited testimony on HB 325. She stated that the crime of domestic violence is used in several areas of law, including criminal law and the filing of protective orders. She offered an example of an individual who may interfere with the reporting of a crime of domestic violence and, should HB 325 pass, the use of images could be used as evidence of this crime. She stated that the crime would be a Class B misdemeanor, and the sentence would not change. She stated that mandatory minimum sentences for crimes of domestic violence exist, such as those involving assault. She noted that special provisions exist for bail associated with crimes of domestic violence at the time of arraignment. MS. SCHROEDER, in response to a question from Representative Vance, stated that for a court to issue a protective order, the court would have to find that a crime of domestic violence had occurred, and it would refer to the underlying statute to determine whether the conduct had amounted to domestic violence. In response to a follow-up question regarding how a protective order could add protection against the use of images, she stated that a court could order an individual not to commit a crime against a person, and any continued behavior could result in additional criminal charges. She added that there would likely be a provision of no contact issued. 2:23:29 PM REPRESENTATIVE EASTMAN questioned the definition of "publishing" or "distributing," as referred to in the proposed legislation. MS. SCHROEDER answered that the definition of publishing exists on the internet, as it does in other statutes. She added that the Webster's Dictionary is used to define terms which are not already defined in statute. REPRESENTATIVE EASTMAN asked whether "distribution" would be considered if images are only distributed to one other individual. MS. SCHROEDER answered that the material would not be required to be widely distributed. She added that "distributes" is defined in 11.61.116, which pertains to distributing an explicit image of a minor. This means to deliver an image by sending the image to another person's computer or telephone. 2:25:10 PM REPRESENTATIVE EASTMAN noted that the definition would include both electronic and print [format]. He posited that an individual may attempt to contact a minor's parent to alert the parent to the image being distributed. He expressed concern that this could result in the concerned party having committed a crime. MS. SCHROEDER clarified that the example pertains to children; therefore, it is associated with a different statute. She added that this would not concern domestic violence. She added, for a crime to have occurred, the perpetrator would have had the intent to harass or annoy the victim. She stated that the previous example could be an indication a crime had occurred, and this would require evidence of the mental state of the individual sharing the explicit image with the parent. She added that an individual sharing an image out of concern would not be an intent to harass or annoy. REPRESENTATIVE RASMUSSEN added that, in cases of domestic violence, the abuser is often engaged in acts to manipulate or coerce the victim. She offered an example in which a perpetrator threatens to share, or does share, the image with the victim's employer. She reiterated that distributing it solely to one person would meet the definition of harassment. 2:31:27 PM REPRESENTATIVE SNYDER, using the hypothetical situation involving an explicit image of a 16-year-old person, questioned whether the definition of domestic violence would be met when the concerned party is not a member of the 16-year-old's household. MS. SCHROEDER answered that for a crime to be considered "domestic violence," the perpetrator is required to be a member of the victim's household. She noted that if a 16-year-old person is annoyed because a parent is notified, this would not amount to the intent to harass or annoy the victim. REPRESENTATIVE EASTMAN expressed the understanding that the proposed definition would exclude a 15-year-old victim. He questioned why it would pertain to a 16-year-old individual. MS. KOENEMAN answered that any [explicit] images of an individual under the age of 16 would fall under AS 11.61.116, which addresses the explicit images of minors. REPRESENTATIVE EASTMAN asked whether the sponsor's intent is for crimes associated with a 16-year-old individual be considered domestic violence, while those associated with individuals under the age of 16 not be considered domestic violence. REPRESENTATIVE RASMUSSEN answered that HB 325 would not address the age of consent in statute, but it would update the associated statute to include the increased prevalence of electronic images and videos and how this distribution would make the victim embarrassed or ashamed. REPRESENTATIVE EASTMAN restated his question, asking why individuals under the age of 16 would be excluded from the definition of domestic violence [in the proposed bill]. MS. KOENEMAN answered that the distribution of these images is already in statute, and HB 325 would not make changes to this existing statute. 2:38:17 PM REPRESENTATIVE VANCE questioned the frequency of this type of behavior, and she questioned whether it occurs enough to establish the proposed bill. 2:39:06 PM MICHAEL HENRY, Sargeant, Alaska State Troopers, Department of Public Safety (DPS), provided invited testimony on HB 325. He stated that DPS has conducted an audit to determine statistics related to harassment, and the law contains approximately eight subsections under which there were 180 instances. He cautioned that the information provided was an estimate. CHAIR CLAMAN asked whether the 180 cases of harassment had included first- and second-degree charges. He questioned the timeframe of the charges. SERGEANT HENRY answered that the statistics include data from 2012 to the present, with the charges filed under AS 11.61.128 (6). He noted that some of those reported had been improperly coded. He stated that a separate audit has been conducted regarding cases which resulted in charges filed, and this totaled nine incidents. He offered to follow up to the committee with additional research, if needed. MS. KOENEMAN added that crimes involving domestic violence are severely underreported, as reasons exist for victims to not come forward. She suggested the absence of statistics supporting the need for the bill does not equate to less of a need for the protections in law. 2:43:12 PM REPRESENTATIVE VANCE referred to page 1 of a document entitled "HB 325 Supporting Documents 2.17.2022.pdf," [included in the committee packet] which depicts "revenge porn" as illegal, noting, "1 in 3 victims of sextortion in a 2017 online survey said they had never told anyone, largely because of shame or embarrassment." She asked whether there exists a legal loophole and whether this is the reason for the proposed legislation. MS. KOENEMAN answered that this type of harassment is illegal in Alaska under criminal harassment statute, but it is not included in the domestic violence statute. She stated that, when the court is seeking to determine if a crime of domestic violence between household members has occurred, a domestic violence protective order could be issued based on such conduct. REPRESENTATIVE SNYDER asked whether the primary purpose of the proposed bill would be to include the publication and distribution of explicit images, so individuals may file for a protective order under the domestic violence statute. MS. KOENEMAN answered yes, and it would provide victims legal assurance that the conduct qualifies as domestic violence. REPRESENTATIVE SNYDER, in cases that involve teenagers not sharing a household with the perpetrator, asked whether [an individual between the ages of 16 to 18] would file charges under the harassment in the second-degree statute. MS. KOENEMAN confirmed that the proposed legislation would apply to victims over the age of 16 and, for those victims under the age of 16, charges would be filed under the child pornography statute. REPRESENTATIVE SNYDER questioned whether there is a possibility of an individual being granted a protective order under the harassment in the second-degree statute. MS. SCHROEDER offered that, in cases of harassment charges being filed, the state would request a no-contact order at the time of the bail hearing. 2:48:04 PM CHAIR CLAMAN, regarding the requirement of the household member relationship, asked whether a next-door neighbor could be charged with a crime of domestic violence. MS. SCHROEDER stated that this would not fall under the proposed legislation. CHAIR CLAMAN posited a couple who had lived together, but since split, and one distributed explicit pictures of the other after the split. He questioned whether the perpetrator could be charged with a crime of domestic violence. MS. SCHROEDER answered that it could be a crime of domestic violence. She explained that household members include those who live together or those who had lived together. CHAIR CLAMAN posited a case which involves two 17-year-old individuals in a dating relationship, and one distributed an explicit picture of the other. He questioned whether this individual could be charged with a crime of domestic violence. MS. SCHROEDER stated that the definition would include those who are dating or who have dated. She emphasized the provision that there would need to exist the intent to harass or annoy [the victim]. CHAIR CLAMAN asked what bail considerations would be for someone charged with harassment under the domestic violence statute, compared to a non-domestic violence harassment charge. MS. SCHROEDER answered that regarding release on domestic violence cases, under AS 12.30.027, the main consideration is whether conditions of release would allow contact or no contact. CHAIR CLAMAN asked what typical bail would be set in the case of harassment in the second degree, as a Class B misdemeanor, considering one's criminal history. MS. SCHROEDER answered that, in a case when the defendant has no criminal history it would likely be an "own recognizance" release and would likely include an order for no contact. 2:52:22 PM REPRESENTATIVE EASTMAN expressed the understanding that, under federal law, a misdemeanor crime of domestic violence could result in a loss of access to firearms. He asked whether the proposed bill would result in the same. MS. SCHROEDER cautioned that she is not familiar with federal law and deferred to DPS. SERGENT HENRY offered to follow up to the committee with a confirmed answer. 2:53:31 PM KELLY HOWELL, Special Assistant to the Commissioner, Department of Public Safety, provided invited testimony on HB 325. She expressed the belief that, for a crime to amount to an inhibition to possess or purchase firearms or ammunition, a crime involving domestic violence would need to include an element of force. She offered to follow up to the committee with a confirmed answer. REPRESENTATIVE EASTMAN questioned whether distributing images would ever involve [the use of] force. MS. HOWELL expressed the belief that it would not. She deferred to the Department of Law to provide a confirmed answer. REPRESENTATIVE EASTMAN, in subsection (6), paragraph (6) in the proposed legislation, requested clarity on the exception for images which do not involve nudity. In response to Chair Claman, he confirmed that he was referring to the proposed language involving images of a sexual act. MS. SCHROEDER answered that the term "sexual act" is defined in AS 11.41.470(6), and this is defined as sexual penetration or sexual contact. 2:57:24 PM REPRESENTATIVE VANCE questioned whether the accused would be subject to automatic arrest under the domestic violence statute, per the proposed legislation. MS. HOWELL responded that crimes involving an act of domestic violence within the preceding 12 hours would result in mandatory arrest. She deferred the question to Sergeant Henry. SERGEANT HENRY explained that after a crime has been reported and an investigation reveals the existence of probable cause, three criteria would need to be met for an arrest. He listed those as the existence of probable cause, the crime occurred between household members, and the crime was within the prior 12 hours. He stated that if all three had been found during the investigation, a mandatory arrest would occur. If the alleged crime had occurred more than 12 hours prior to the report, or it was determined that the definition of household members did not apply, then a mandatory arrest would not occur. 2:59:32 PM REPRESENTATIVE CLAMAN announced that HB 325 was held over.