HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"  1:36:31 PM CHAIR CLAMAN announced that the first order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the code of military justice; relating to consent; relating to the testing of sexual assault examination kits; and providing for an effective date." He stated that there would be two presentations on data related to HB 5. [Before the committee was CSSSHB 5(STA).] 1:37:09 PM TROY PAYNE, Ph.D., Director/Assistant Professor, Alaska Justice Information Center (AJiC), College of Health, University of Alaska Anchorage, offered two PowerPoints [in relation to CSSSHB 5(STA)]. He began the first PowerPoint, titled "FBI Uniform Crime Report Statistics" [hard copy included in the committee packet]. The presentation addressed the Federal Bureau of Investigation's (FBI's) Uniform Crime Reporting Program (UCR), and its definition of rape. He shared that AJiC is an academic research unit which compiles, analyzes, and reports on criminal justice topics to policy makers and practitioners to improve public safety, increase criminal justice system accountability, and reduce recidivism. He stated that AJiC's specialty consists of a wide variety of quantitative data analysis. 1:39:24 PM DR. PAYNE, pointing out slide 3, stated that UCR dates back to the 1930s, when a need for reporting crime statistics in the country had been recognized. To create consistency in reports, he said, UCR has specific definitions for offenses. He added that these definitions may be different from the definitions in state statutes. He explained that UCR can only count crimes known to the police, but each police agency has its own classification system for offenses. He said that police agencies will often report to a state agency, which reports to the FBI. In Alaska police statistics are reported to the Department of Public Safety (DPS), and it produces an annual report titled "Crime in Alaska." 1:41:29 PM DR. PAYNE, moving to slide 4, reiterated that UCR only includes crimes collected from police reports. He added that the Alaska Victimization Survey (AVS) would include crimes not reported to the police. Moving to [slide 5], he explained that before 2013 the definition of rape had been limited, and the new definition has been used in the presentation. He quoted the FBI definition of rape as "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without consent of the victim." He continued that the current definition of UCR rape includes victims of either gender, specifics of penetration, and instances of victims being incapable of giving consent. He stated that physical resistance on part of the victim is not required to demonstrate a lack of consent. He stated that police departments train on the FBI's user manual and gave detailed examples. He concluded that this definition is much more expansive than the prior definition. 1:45:10 PM CHAIR CLAMAN offered the understanding that the current Alaska definition of rape requires the use of force. He questioned whether statistics collected in Alaska would capture conduct which meets the UCR definition of rape, even though the prosecution may not proceed with a case because of the absence of force. DR. PAYNE responded in the affirmative. He reiterated that UCR definitions are completely different from state statutes. He continued that [UCR statistics] only reflect information the police have, not the prosecution or the statute the individual is accused of violating. CHAIR CLAMAN, with a follow-up question, asked whether UCR statistics can determine the number of cases in Alaska which are declined because the definition [includes the use of force]. DR. PAYNE responded that there is no way to determine this from the UCR statistics alone. He expressed the understanding that data from police departments and the Department of Law (DOL) would be needed. 1:47:59 PM DR. PAYNE, in reference to the graph on [slide 5], pointed out that UCR calculates rape crime numbers in terms of the rate per population of 100,000. He explained the calculation, and said it standardizes the number of offenses across the country. He drew attention to the incorrect assumption that states with higher populations have a higher number of offenses. He argued the UCR method produces a more comparable number. DR. PAYNE, using the calculation, pointed out the chart on [slide 6] shows that Alaska's rate is substantially higher than the national average. He described the difference between the national average and Alaska as "staggering." He referenced several things which could influence the rates, including the difference in reporting between states. For a better understanding, he encouraged comparisons between state averages, national averages, and victimization surveys. He suggested that there could be differences in the numbers on the chart which do not have a tight connection to differences "on the ground." He warned that the substantial difference in Alaska's statistics is very unlikely the result of reporting differences in the country. He stated that [comparing] national averages using AVS suggests the same [results]. 1:50:53 PM REPRESENTATIVE DRUMMOND applied the formula using the population of Alaska and said the rape rate would be 1,085 versus the national rate of 266. She questioned whether her estimations were correct. DR. PAYNE responded that this is roughly accurate, but he would follow up with the actual numbers at a later date. 1:52:22 PM REPRESENTATIVE VANCE, comparing Alaska's numbers to the national average, noticed that Alaska's numbers vary over the course of the years, while the national average remains relatively static. She questioned whether there could be factors contributing to the variation in Alaska's numbers. 1:52:59 PM DR. PAYNE responded that UCR does not have good [data] on this. He explained that, as a matter of pure math, larger numbers would have more variation. He said it is very hard for counts to hit zero, for example, the lower a number goes, the harder it is to change. 1:53:29 PM REPRESENTATIVE VANCE, with a follow-up question, clarified Alaska's rape rate represents the cases known to police. In reference to the inclusion of force in Alaska's definition of rape, she questioned whether the state's [rate of rape] would be higher without the use of force factored into the definition. DR. PAYNE responded that UCR's definition of rape is explicit that physical resistance is not required on part of the victim to demonstrate lack of consent. He expressed the opinion that there would be situations which would classify as rape under UCR's definition but not under Alaska statutes. He deferred the question to DPS for offence classification guidance. 1:55:53 PM CHAIR CLAMAN commented that, assuming police are reporting accurately to the FBI, the Alaska statistics would include rapes using the UCR definition; thus, the Alaska rape rates would reflect incidences reported which do not include the use of force. DR. PAYNE answered in the affirmative. He cautioned that this is assuming agencies classify offences following the FBI's manual. He continued that DPS does periodic audits of agencies, but DPS would need to be questioned on its process. Typically, agencies spend a good amount of effort and staff time to classify the offenses correctly. He allowed that mistakes could happen, and consistent counting is difficult for smaller agencies. 1:57:43 PM REPRESENTATIVE VANCE requested that DPS speak to this. 1:58:19 PM KELLY HOWELL, Special Assistant, Office of the Commissioner, Alaska Department of Public Safety, deferred the question to Lisa Purinton. 1:59:19 PM REPRESENTATIVE KURKA pointed out [on slide 6] the rate of rape in 2014 for Alaska was substantially less than the rates in 2018 or 2020. He described it as "a dip" and questioned its occurrence. 1:59:46 PM DR. PAYNE stated that he has no insight into this occurrence. He stated that there is an expectation for a variation in any time series [in analysis], and it would be difficult to say anything specific about a one-year change. He advised that, in an academic sense, a one-year change usually does not indicate much. CHAIR CLAMAN restated Representative Vance's question for Lisa Purinton. He pointed out the question had been about the differences in the definition of rape in regard to the accuracy of data reported by the state to the FBI. 2:01:03 PM LISA PURINTON, Chief, Criminal Records and Identification Bureau, Alaska Department of Public Safety, stated that the bureau manages the state's crime reporting program. Part of the program is annual training on the differences between the FBI's definitions for offenses versus the state's definitions. In order to understand national trends and have an "apples to apples" comparison among states, she said, the FBI's definitions have to be followed. She explained that the FBI audits the data every three years, while the state audits every two years; however, audits have not been done in the last three years because of a reporting format change. She stated that in 2021 the FBI stopped accepting the summary format and only accepts reporting done under the National Incident-Based Reporting System (NIVRS). She said NIVRS produces more robust data, as it breaks out the data fields in more detail. She stated that, previous to the format change, the audits had made sure agencies were following the FBI guidelines per the definition of rape. 2:03:22 PM REPRESENTATIVE VANCE, with a follow-up question, pointed out that [slide 6] shows the rate of rape in 2020 as 155 [per population of 100,000]. She questioned whether the number DPS reports to prosecutors would be lower. MS. PURINTON responded that in the investigative process DPS would follow the state's law for reporting a sex offense, not the FBI's definition. She expressed the understanding that because the FBI's definition is broader than the state statute, DPS reports would probably show a lower number of sex offences than [UCR]. 2:04:28 PM MS. PURINTON, in response to Chair Claman, stated that DPS collects two types of crime statistics: UCR data and felony- level sex offense data. She added that the felony-level sex offense database follows the state definition of a sex offense and would only include felony sex offenses. She catalogued the [collected] data as: what was reported to law enforcement, what was referred to the prosecutor's office, and what actually came out of the referral to the prosecutor's office. In respect to this, she said, "Right now we just have the front end of the data. This is the information which was reported to law enforcement." She stated that DPS is developing a project to work with DOL to capture the life cycle of felony-level sex crimes. 2:06:03 PM DR. PAYNE, adding a comment to [Ms. Purinton's response], said it would be too difficult to trace the entire course of a case and produce the statistics concerning referrals versus cases accepted for prosecution. He added this has been difficult across the country. He expressed the opinion that this information is important and said, "So it's good to hear that DPS and DOL are both looking at it." 2:06:52 PM DR. PAYNE moved to the graph on the last slide, which compares states with similar demographics to Alaska. He pointed out that these states have high indigenous populations; however, demographically, they are very different from Alaska, and their rape rates are closer to the national average. He pointed out that the state with the next highest rape rate in the country is one half of the rate in Alaska. He voiced the opinion that because of the large difference, it is unlikely there is an issue with the data. He stated that this tracks with the information from AVS. 2:08:44 PM REPRESENTATIVE EASTMAN expressed the understanding that Alaska only deals with crimes reported to police agencies. He questioned whether Alaska would be considered much better or much worse at reporting crimes. DR. PAYNE expressed the understanding that Alaska is worse. He explained that AVS is a survey of respondents where individuals are questioned, and rates are calculated from their responses. He stated that AVS has nothing to do with police reports, and its results show substantially higher [rape] rates in Alaska compared to the national averages. He remarked, even if some of the differences in UCR rates were the result of better reporting to the police, this is not the entire explanation. 2:10:13 PM DR. PAYNE, in response to a follow-up question, stated that he does not have a theory for the reason that the national average of rape is going down while Alaska's rate is going up. He said there are many complicated factors which contribute to crime trends, and it would be difficult to parse this out. He said there is not a quick, "off-the-top of my head" explanation. 2:11:07 PM CHAIR CLAMAN expressed the understanding that the pre-2013 data was not being presented because of a change in the UCR definition of rape. He questioned whether there had been a significant increase in the rate of rape relative to the new definition. DR. PAYNE responded that the rate is substantially different with the new definition, to the point that "it feels dishonest to put them on the same plot." He explained that this is the reason the graph is limited to 2013. He further said that as late as the 1970s, Alaska's rates have been consistently higher than national averages, even under the old definition; therefore, this is not just a function of the definition change. He stated that Alaska has remained higher than national averages under UCR rape counts for the entirety of data available. He reiterated that the graph represents the new definition from 2013 to 2020, while the old definition would go back to 1979. DR. PAYNE, in response to a follow-up question from Chair Claman, stated that there had been a similar increase in national averages from the definition change. He attributed the increase to the limitations in the old definition. For example, he said, the old definition of rape only included sexual intercourse between a female and a male, while the current definition includes new classes of victims and acts. When the definition changed in 2013, and through the transition period to 2016, substantial increases had been seen in the national average. He noted that in any UCR presentation of rape statistics, there is a hard break with prior years. Referencing an earlier question, he suggested that the reason for some of the volatility in the 2014 numbers could be because of this transition. 2:14:58 PM DR. PAYNE began his second PowerPoint presentation, titled "Estimating the Impact of HB 5's Proposed Changes to AS 11.41.436(a) and AS 11.41.438" [hard copy included in the committee packet]. The presentation focused on an analysis of the potential impacts of [CSSSHB 5(STA)]. He stated that the analysis was requested by the Alaska Criminal Justice Commission. He stated that, per statute, AJiC provides technical assistance to the commission and has access to its data. On slide 4, he pointed out that the effects of criminalizing behavior that is currently lawful cannot be estimated, and this created a limitation for the analysis. In example, he pointed out the proposed legislation would change the definition of consent, and, in terms of criminal justice outcomes, this change cannot be estimated; however, because there was available data, the results of implementing the proposed changes in Section 3 and Section 4 could be estimated. 2:17:48 PM DR. PAYNE stated that a grid [seen on slide 6] had been created to demonstrate the proposed changes in Section 3 and Section 4. He said Section 3 would increase the punishment for offenders who are 18 years old, or older, and who are 10 years older than victims 13, 14, or 15 years of age. The felony charges would increase from a minimum 5-year sentence to a minimum 20-year sentence. This section would also criminalize the sexual penetration of 16- and 17-year-old victims by offenders who are at least 10 years older than the victim. He stated that the grid represents a visualization of the comparison of the current law with the proposed changes. He added that incest and the abuse of authority are already covered by statute and not included in the legislation. He continued that the proposed changes would create unclassified felonies for some of the offenses. He described unclassified felonies as the most serious felonies in the state. 2:21:17 PM DR. PAYNE stated that one of the large, overall findings for AJiC was the complexity of the intersection of the existing statute with the proposed changes. He stated that this was the purpose of the grid. He provided a memo [included in the committee packet] which explains this in detail. 2:22:07 PM REPRESENTATIVE EASTMAN, referencing slide 6, expressed the understanding that consensual sex between a 17-year-old person and a perpetrator [who is 10 years older than that person] is currently legal. He questioned whether the proposed legislation would change the [act] to be the same class of felony as murder. DR. PAYNE responded in the affirmative. 2:22:50 PM DR. PAYNE moved to slide 7. He pointed out the changes in Section 4 are similar to the changes in Section 3. The difference, he said, is Section 4 refers to sexual contact, while Section 3 refers to sexual penetration. He stated that the language and the escalation of the penalties are very similar, but the penalties for sexual contact are less than the penalties for sexual penetration. He pointed out the proposed changes in Section 4 are shown in the grid on slide 8. 2:24:59 PM DR. PAYNE, moving to slide 9, stated that the Alaska Criminal Justice Commission had requested information concerning the impacts on criminal justice outcomes. He stated that DPS had supplied AJiC with charge-level data for every arrest in the state, and AJiC estimated sentences based on this. He said that there were data limitations in the analysis. In example, he said, there was no information concerning whether sentences with multiple convictions were ordered to be served consecutively or concurrently. DR. PAYNE, moving to [slide 10], explained that another limiting factor in the analysis was the unavailability of data concerning the reduction of a sentence because of a prisoner's good behavior. He clarified that the time ordered by the judge was used in the analysis, not the actual amount of time served. He said another assumption made was that the sentence length was the only variable in criminal processing. He explained that this excluded the effects of the decisions made by actors involved in cases, including victims, police officers, prosecutors, courts, and juries. He suggested that felony classifications could cause each actor involved in a case to make a different decision, but there is no way of knowing this; thus, the assumption in the analysis was made that every actor made the same decision. He added that the data sources available to AJiC have no information on victims. He said this is good for privacy, but because part of the equation has to do with the age of the victim, it is bad for the analysis. Considering the limitations, he expressed the hope that some of the estimations may be useful. 2:29:16 PM DR. PAYNE, moving to [slide 11], stated that an estimated 42 percent of the cases from 2015 to 2019 would have been impacted by the proposed legislation. He discussed the variables in the data which could impact cases, such as the use of force, the age differential, sexual contact, sexual penetration, and victim trauma. He reiterated that all the decisions made by all the actors in a case are complex. He acknowledged that the analysis simplifies many of these aspects. 2:31:57 PM REPRESENTATIVE DRUMMOND questioned whether the offenders in the impacted cases would have had longer jail sentences [per the proposed legislation]. DR. PAYNE responded that if the proposed legislation had been active [from 2015 to 2019], the offenders' ordered time would have increased about 500 years [over 5 years], as seen on slide 12. 2:34:07 PM REPRESENTATIVE DRUMMOND, with a follow up, said, "One hundred years of extra prison time doesn't mean anything to me." In consideration of the recent increase in the budget for the Department of Corrections (DOC), she questioned the number of offenders who would be staying in prison longer. DR. PAYNE responded that 100 years of additional time would be spread among 20- to 40-cases per year. He reiterated that assumptions were made because victim data was unavailable. 2:35:54 PM CHAIR CLAMAN estimated that, using the numbers provided, the proposed legislation would increase incarceration time per person by about three years. 2:36:28 PM REPRESENTATIVE EASTMAN commented that time off for good behavior "seems pretty standard." He questioned the inclusion of this in the data. DR. PAYNE responded that the calculation of time off for good behavior is complex, and he would need to refer to legal experts for this information. He expressed the understanding that the impact of "good time" on actual days served can be up to one third of an offender's sentence, but this would not accrue for unclassified felonies, because time for unclassified felonies cannot be reduced. 2:38:25 PM CHAIR CLAMAN, with a follow-up comment, stated that time off for good behavior for sex crimes is different from other crimes. 2:38:36 PM REPRESENTATIVE KREISS-TOMKINS expressed the opinion that the primary question should concern solving the epidemic of rape. He questioned whether enhancing the criminalization would actually reduce the occurrence of rape. He questioned whether a cause-and-effect relationship has been addressed in similar legislation in other states. 2:39:42 PM DR. PAYNE responded that the question is important, but difficult. He stated that, generally, research has found longer prison terms do not affect recidivism. 2:42:05 PM REPRESENTATIVE EASTMAN pointed out that crime would be reduced for the period the [convicted] individual is in prison. DR. PAYNE replied in agreement and said once an individual is inside prison, he/she generally would not be able to commit crimes outside of the correctional facility. He continued that the question would be, "What happens after?" He stated there are decades of research which point out that longer prison terms do not result in fewer crimes. He offered the understanding that cognitive-behavioral programs tend to work, and, in general, incarcerating people for a longer term does not reduce recidivism. He said this runs counter to what "I would like to believe as well," and it took many years of research to believe otherwise. 2:44:07 PM DR. PAYNE moved to [slide 13] and summarized the impacts of [CSSSHB 5(STA)] on criminal justice in Alaska. He cautioned that changing a crime to an unclassified felony could incur a series of different decisions on the part of actors involved in the case. He added that a result of this may be an increase in prosecution and personnel costs. He said this is not easily estimated but a reasonable assumption. 2:45:18 PM REPRESENTATIVE EASTMAN pointed out that individuals of a certain age, such as senior citizens, would be less likely to commit crimes after release from prison. DR. PAYNE responded that in general this would be correct. He expressed the opinion that the question is difficult because the answer would involve a cost-benefit analysis. He offered to follow up with information at a later time. 2:46:12 PM REPRESENTATIVE DRUMMOND, referencing DOC's expenditures on additional [programs] for sex offenders, expressed the opinion that implementing [CSSSHB 5(STA)] would "keep more rapists off the street for longer." [HB 5 was held over.]