HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"  4:24:30 PM CHAIR KREISS-TOMKINS announced that the final 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." 4:25:25 PM REPRESENTATIVE Tarr, prime sponsor of HB 5, noted that additional support documents had been distributed to the committee [hard copy included in the committee packet]. The material addressed the rape by fraud provisions and included the 2019 Felony Sex Offense Report. She concluded by quoting an attorney who said, "Rape is like a murder where the victim doesn't die." She believed that statement captured the severity of the crimes being considered in this legislation. 4:26:59 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 1, labeled 32- LS0065\G.1, Radford, 4/20/21, which read: Page 3, following line 2: Insert new bill sections to read:  "* Sec. 3. AS 11.41.432(b) is amended to read: (b) Except as provided in (d) - (f) [(d) OR (e)] of this section, in a prosecution under AS 11.41.410 - 11.41.427, it is not a defense that the victim was, at the time of the alleged offense, the legal spouse of the defendant.  * Sec. 4. AS 11.41.432 is amended by adding a new subsection to read: (f) It is a defense to a crime charged under AS 11.41.410(a)(5) or 11.41.420(a)(5) that the offender is married to the person and neither party has filed with the court for separation, divorce, or dissolution of the marriage." Renumber the following bill sections accordingly. Page 6, line 19: Following "Act,": Insert "AS 11.41.432(b), as amended by sec. 3 of this Act, AS 11.41.432(f), enacted by sec. 4 of this Act," Delete "sec. 3" Insert "sec. 5" Page 6, line 20: Delete "sec. 4" Insert "sec. 6" Page 6, lines 20 - 21: Delete "sec. 5" Insert "sec. 7" Page 6, line 21: Delete "sec. 6" Insert "sec. 8" Page 6, line 22: Delete "sec. 7" Insert "sec. 9" Delete "sec. 8" Insert "sec. 10" Page 6, line 23: Delete "sec. 9" Insert "sec. 11" Page 6, line 24: Delete "sec. 11" Insert "sec. 13" Page 6, line 25: Delete "secs. 1 - 9 and 11" Insert "secs. 1 - 11 and 13" Page 6, line 26: Delete "Section 10" Insert "Section 12" REPRESENTATIVE CLAMAN objected. REPRESENTATIVE EASTMAN, in explanation of Amendment 1, opined that two individuals who were married and engaging in sexual relations should not be prosecuted "under these kinds of situations." He believed that spouses should be exempt from the criminal sanctions [in the rape by fraud provisions]. REPRESENTATIVE TARR stated that she did not support Amendment 1 because it would be applied to the rape by fraud section. She explained that the rape by fraud provisions were intended to apply to a circumstance in which the offender misrepresented his/her physical identity and recklessly disregarded that the victim would not have consented to engaging in a sexual relationship had the offender's real identity been known. Moreover, she said she could not think of a circumstance in which [rape by fraud] would apply to a married couple. CHAIR KREISS-TOMKINS asked Representative Eastman to provide a scenario that he was attempting to solve or prevent with the proposed amendment. REPRESENTATIVE EASTMAN remarked: There have been situations where, you know, a spouse is thinking that their partner is having an affair, and as part of catching their partner in the act they switch places and pretend to be the person that ... they think their spouse is having an affair with. REPRESENTATIVE EASTMAN claimed that these kinds of situations had happened and would continue to happen. He continued by recounting the story line from a Shakespeare play, titled "All's Well That Ends Well." He believed it was not possible to conceive of all the situations in which [the rape by fraud provisions] could be used against an innocent spouse. Further, he believed that charging a spouse with rape for having slept with [his/her spouse] would be wrong. CHAIR KREISS-TOMKINS asked Mr. Stinson whether he had encountered a scenario that Amendment 1 would apply to during his time in criminal law. 4:33:01 PM JAMES STINSON, Director, Office of Public Advocacy, Department of Administration, said he had not encountered that scenario. He understood that the rape by fraud provisions were trying to capture a person who had impersonated a different actual person that was in a relationship with someone. Ultimately, he believed that the proposed amendment would come down to a policy call on whether it should be considered rape in the event of a spousal relationship wherein one of the individuals thought that he/she was having an affair with somebody but was actually sleeping with his/her spouse. 4:34:49 PM JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney General, Department of Law, said in his 22 years of experience he had never encountered a case that was similar to what Representative Eastman had laid out in his hypothetical. He shared his understanding that Representative Eastman was proposing that a person had engaged in sexual relations with his/her spouse while believing that the spouse was a third person; further, that person would not have actually consented to having sex with the actual spouse. He said despite what Shakespeare wrote, it did not seem like a realistic case that would be referred for prosecution. Nonetheless, if hypotheticals could be strained to the point that it would be [referred to prosecution], he asked why the legislature would be interested in passing a law that protected an individual who could only have sexual relations with another person by trickery. He said he was having difficulty understanding that concept, and that it would be up to the committee to make the policy call. 4:36:38 PM REPRESENTATIVE CLAMAN echoed Mr. Skidmore's observations. He said he was having a hard time conceiving the circumstance described by Representative Eastman; further, he opined that the application to marriage defense in that scenario was used inappropriately. He explained that in the last few years, the legislature had spent a lot of time looking in detail at AS 11.41.432(b), which was the provision relating to the marriage defense, as well as other subsections on defenses in AS 11.41.432. He believed that Amendment 1 was proposed in reference to a narrow and "somewhat bizarre" set of circumstances that were hard to imagine. Further, he pointed out that [the legislature] had worked hard to try to eliminate the marriage defense except in limited circumstances, such as the Alzheimer's scenario. He concluded by reiterating his opposition to the proposed amendment. 4:38:08 PM REPRESENTATIVE VANCE inquired about the flexibility in statute when considering Alzheimer's cases pertaining to consent. MR. SKIDMORE relayed that AS 11.41.432 described that "the marriage defense is an affirmative defense when the offender was married to the person, neither party is filed for divorce or separation or dissolution. The the victim in that case is capable of consenting and does, in fact, consent while capable of understanding the nature of consequences." He recalled that the concerns that had been raised during the legislative testimony were related to the difficult situations in which a person was capable of consenting on Monday but on Tuesday, because of the nature of Alzheimer's disease, was not capable of consenting. He opined that from that standpoint, there was an affirmative defense; further, that prosecutors had discretion in any case that was presented to them to determine whether it appropriately met the elements and could be proven beyond a reasonable doubt. He believed that the statute contained all the necessary flexibility as written. REPRESENTATIVE VANCE questioned how the proposed amendment would affect that discretion in those types of scenarios. MR. SKIDMORE clarified that Amendment 1 did not pertain to Alzheimer's. Instead, he explained that the amendment was trying to look at a scenario in which one spouse was trying to commit a fraud on the other spouse by impersonating someone else. He said he struggled with the concept that a spouse wouldn't recognize his/her own spouse. He remarked: But assuming for arguments sake that ... I can change my appearance in some capacity that I can actually fool the person with whom I have the most intimate relationship on the planet with, my spouse - I can fool that person into thinking that I'm another person. In that scenario, this amendment would say ... the spouse that is the victim didn't want to engage in a sexual act with their actual spouse but was only willing to engage in that sexual act with a third person outside of the marriage and in that circumstance now, what this amendment would say is 'well, if you really have a relationship that's dissolved that significantly and they are incapable of recognizing who their own spouse is, and they engage in a sexual act with them and they only did it because of fraud, this amendment would now say that's going to be protected. MR. SKIDMORE concluded that the policy question for the committee was whether to protect the conduct of the spouse that committed that fraud. 4:43:35 PM REPRESENTATIVE CLAMAN asked if Amendment 1 were to pass, what the impact would be of making "this" a defense rather than an affirmative defense. MR. SKIDMORE believed that the difference was that an affirmative defense required the defendant to put forth some evidence that established that scenario; alternatively, a defense didn't require the defendant to put forward anything affirmatively but required the prosecution to disprove it. 4:45:03 PM REPRESENTATIVE EASTMAN inquired about the statute of limitations that would apply to the rape by fraud provisions should the bill pass into law. MR. SKIDMORE stated that sexual assault did not have a statute of limitations. REPRESENTATIVE EASTMAN pointed out that Mr. Skidmore had mentioned that [the rape by fraud provisions] would only apply when a spouse would not have consented to sexual relations [had he/she known the true identity of the offender]; however, as he understood it, that concept was not clearly stated in the bill. Additionally, he recalled testimony from a previous hearing that had indicated that a person's prior behavior did not equate to consent. He asked for further clarification. MR. SKIDMORE confirmed that previous conduct did not necessarily equate to consent for a particular incident. Nonetheless, he explained that as a prosecutor, his obligation would be to prove that the victim did not consent. He anticipated that if Amendment 1 were adopted, in any case in which he would try to bring a charge under the [rape by fraud provision], the defense attorney would argue "this was their spouse, you're telling me they weren't considering [having] sex with their spouse?" He believed that was the consent issue that the prosecution would be faced with under this subsection. He continued to explain that identity was the factor in question under this provision and whether the victim truly did not perceive the actual identity of the offender. He added that dressing up as someone else would not be enough. He remarked: I could try and make myself look like Brad Pitt ... and so, if I attempted to do that, I don't think my wife would ever be fooled into thinking that I was Brad Pitt. And so, the question is if I was pretending to be him, and I tried to engage in some sort of sexual act with my wife ... did she consent to that sex with me or was she truly fooled... REPRESENTATIVE EASTMAN maintained his concern about criminalizing conduct that was taking place within the [confines] of marriage, which he believed shouldn't be criminal. 4:53:33 PM REPRESENTATIVE CLAMAN maintained objection 4:54:01 PM A roll call vote was taken. Representative Eastman voted in favor of the adoption of Amendment 1. Representatives Tarr, Story, Claman, Vance, Kaufman, and Kreiss-Tomkins voted against it. Therefore, Amendment 1 failed by a vote of 1-6. 4:54:56 PM REPRESENTATIVE VANCE moved to adopt Amendment 2, labeled 32- LS0065\G.4, Radford, 4/26/21, which read: Page 5, line 6: Delete "person" Insert "victim" Delete "defendant" Insert "offender" Page 5, line 12: Delete "defendant" Insert "offender" Page 5, line 14: Delete "defendant's" Insert "offender's" Page 5, line 15: Delete "defendant" Insert "offender" CHAIR KREISS-TOMKINS objected for the purpose of discussion. 4:55:00 PM REPRESENTATIVE VANCE explained that Amendment 2 would provide consistency in the bill language by replacing "person" with "victim" and replacing "defendant" with "offender" on page 5. CHAIR KREISS-TOMKINS questioned whether the inserted language differed from other criminal law statutes. Additionally, he asked why the bill was not originally drafted with the proposed language in Amendment 2. REPRESENTATIVE VANCE said she did not know the answer. CHAIR KREISS-TOMKINS asked Mr. Stinson whether the language proposed in Amendment 2 was consistent with other criminal law statutes. 4:57:32 PM MR. STINSON said he was unsure whether there would be a legal significance. He explained that the person being charged was designated as the "defendant" whereas the victim witness was referred to as the "victim" or "alleged victim" during course of the proceedings. REPRESENTATIVE CLAMAN, after a quick perusal through AS 11.41.410, AS 11.41.420, and AS 11.41.425, noted that the statutory language referred the "offender" rather than the "defendant." Therefore, he believed that changing "defendant" to "offender," as proposed in Amendment 2, would be more consistent with the language in AS 11.41.410. However, he said he was fairly certain that that the use of the word "victim" was unusual because it would imply a conviction. He shared his belief that deleting "person" and inserting "victim," as proposed in Amendment 2, would draw the conclusion that a crime had been committed. REPRESENTATIVE EASTMAN pointed out that referring to a party as a "petitioner" did not necessarily mean that their petition was valid. Nonetheless, he agreed with Representative Claman that to decide that a crime had been committed ahead of time would prejudice the entire process. 5:01:27 PM RENEE MCFARLAND, Deputy Public Defender, Alaska Public Defender Agency, noted that sexual assault and sexual abuse of a minor statutes used the word "offender" in reference to the defendant. Further, sexual abuse of a minor statutes used the word "victim" in provisions pertaining to individuals being charged with conduct involving their children or people in positions of authority. She also noted under AS 11.41.470, "victim" was defined as "the person alleged to have been subjected to sexual assault in any degree or sexual abuse of a minor in any degree." Additionally, the current definition of "without consent" used the word "defendant." Ultimately, she concluded that the statutory language used "offender" in reference to the offense at issue, "defendant" when addressing consent, and "victim" when discussing certain aspects of sexual abuse of a minor. 5:03:00 PM REPRESENTATIVE TARR pointed out that in "common language," there was an ongoing effort to transition the verbiage from "victim" to "survivor." She acknowledged that the effort was outside of the law; nonetheless, it was part of the cultural change around these issues. Regarding the use of "offender" instead of "defendant," she said she was comfortable with the change if it would maintain consistency. CHAIR KREISS-TOMKINS asked Mr. Skidmore whether the Department of Law (DOL) had a position on Amendment 2. MR. SKIDMORE reported that the word "victim" was used in AS 11.41.410(a)(4)(B) and AS 11.41.420, as well as subsequently defined in AS 11.41.470(7). He said DOL had no objections to the use of the word "victim." He submitted that the statutes were somewhat inconsistent in their use of "person" versus "victim." He said he understood Amendment 2 to be an attempt at clarifying the definition of consent in terms of who was being discussed. He believed it would be a policy call for the committee. 5:06:14 PM REPRESENTATIVE KAUFMAN surmised that the ideal statutory language would be the most neutral wording that correctly identified the "players." He asked Mr. Skidmore whether there was a benefit to using the terms "person" or "defendant," which were more neutral, as opposed to "victim" and "offender." MR. SKIDMORE agreed with the concept of using the most neutral terms in statute in addition to providing clarity. He continued to defer to the committee on whether Amendment 2 would provide clarity. CHAIR KREISS-TOMKINS maintained his objection. He said he was in favor of using neutral legal language and that it was up to the defense and the prosecution to make their case, as opposed the statutory language. Further, he pointed out that there had been no confusion around the existing language. 5:09:06 PM REPRESENTATIVE VANCE stated that the purpose of Amendment 2 was to clarify who was being described in the definition of consent. She pointed out that the terms "victim" and "offender" were used in Section 4 of SSHB 5; therefore, she believed the proposed amendment would create consistency. Nonetheless, she deferred to the will of the committee. REPRESENTATIVE STORY inquired about the bill sponsor's position on Amendment 2. REPRESENTATIVE TARR said she was opposed at this time. She expressed interest in continuing to work with Representative Vance on the language as the bill moved forward. 5:11:09 PM REPRESENTATIVE VANCE withdrew Amendment 2. She announced that Amendment 3 would not be offered at this time. 5:12:37 PM REPRESENTATIVE TARR moved to adopt Amendment 4, labeled 32- LS0065\G.6 Radford, 4/26/21, which read: Page 2, line 9: Delete "who is" Insert "whom the offender has" Page 2, line 11, following "person": Insert "based on the offender's physical  identity, not on characteristics, traits, or  accomplishments of or similar facts about the  offender, with reckless disregard that the person  would not have consented to the sexual penetration if  the person knew the offender's real identity" Page 2, following line 11: Insert a new bill section to read:  "* Sec. 2. AS 11.41.410(b) is amended to read: (b) Sexual assault in the first degree, (1) under (a)(1) - (4) of this section, is an unclassified felony and is punishable as provided in AS 12.55;  (2) under (a)(5) of this section, is a  class A felony and is punishable as provided in AS  12.55." Renumber the following bill sections accordingly. Page 2, line 31: Delete "who is" Insert "whom the offender has" Page 3, line 2, following "person": Insert "based on the offender's physical  identity, not on characteristics, traits, or  accomplishments of or similar facts about the  offender, with reckless disregard that the person  would not have consented to the sexual contact if the  person knew the offender's real identity" Page 6, line 19, following "AS 11.41.420(a), ": Insert "AS 11.41.420(b), as amended by sec. 2 of this Act," Delete "sec. 2" Insert "sec. 3" Delete "sec. 3" Insert "sec. 4" Page 6, line 20: Delete "sec. 4" Insert "sec. 5" Page 6, lines 20 - 21: Delete "sec. 5" Insert "sec. 6" Page 6, line 21: Delete "sec. 6" Insert "sec. 7" Page 6, line 22: Delete "sec. 7" Insert "sec. 8" Delete "sec. 8" Insert "sec. 9" Page 6, line 23: Delete "sec. 9" Insert "sec. 10" Page 6, line 24: Delete "sec. 11" Insert "sec. 12" Page 6, line 25: Delete "secs. 1 - 9 and 11" Insert "secs. 1 - 10 and 12" Page 6, line 26: Delete "Section 10" Insert "Section 11" REPRESENTATIVE EASTMAN objected for the purpose of discussion. 5:12:44 PM REPRESENTATIVE TARR stated that Amendment 4 was designed to "tighten" up the language in the rape by fraud provisions. Additionally, she said it would reclassify the crime. She relayed that lines 5-9 of Amendment 4 were intended to clarify that rape by fraud would apply to situations in which people misrepresented their physical identity to gain consent for sexual penetration or sexual contact, as opposed to circumstances wherein someone was dishonest about his/her education status or income, for example. She said the second part of the amendment addressed the sentencing provisions. She noted that sexual assault in the first degree was an unclassified felony with a 15-20-year prison sentence for the first offense. Amendment 4, she explained, would make rape by fraud a class A felony, whereas sexual contact by fraud would be a class B felony. She reasoned that the crime of rape by fraud involved some premeditation, so situating it a class A felony would differentiate it between sexual assault involving use of force and other circumstances. 5:20:34 PM REPRESENTATIVE EASTMAN asked, "should the ... meaning of the amendment basically be 'with reckless disregard for the fact that'?" REPRESENTATIVE TARR stated that the offender would act with reckless disregard that the person would not have consented had the offender not concealed his/her physical identity. REPRESENTATIVE EASTMAN questioned whether it was "reckless disregard that it might be possible." REPRESENTATIVE TARR believed that was correct. REPRESENTATIVE EASTMAN asked whether "non-consent" would become an element of the crime. REPRESENTATIVE TARR understood that consent would be in question in addition to whether the person acted with reckless disregard to the sexual assault that took place. REPRESENTATIVE EASTMAN asked, "to what extent does that the person would not have consented does that need to be established as part of the crime." 5:24:06 PM MR. SKIDMORE said from DOL's perspective, the lack of consent would absolutely be an element of the crime. He pointed out that sexual conduct between two adults was not in and of itself illegal - only the lack of consent made it illegal. He explained that the lack of consent in this case was determined by the fact that a fraud had occurred, and the fraud meant that there wouldn't have been consent had the person known the other individual's true identity. REPRESENTATIVE EASTMAN expressed his confusion. He asked whether rape by fraud was a situation in which the act of fraud had deprived the victim of being able to consent or "if they had wanted to consent if they knew the offender's real identity, does that negate the crime?" MR. SKIDMORE sought to verify that Representative Eastman was asking whether it was a crime if [the victim] didn't consent because of the fraud and would it not have been a crime if [the victim] knew the person's real identity. REPRESENTATIVE EASTMAN answered yes. He asked if the victim had known the real identity and would have consented under those circumstances, would the crime of rape by fraud have not occurred. MR. SKIDMORE remarked: Yes, I think if they actually know the person's real identity, or if they had known the person's real identity and they would have consented had they known the real person's identity, then I don't think you have a crime of sexual assault because they were still consenting to the sexual conduct. What the crime of sexual assault under this particular subsection is trying to get at is the circumstance in which a person did not want to consent to that conduct with that person, but if they were consenting under some other circumstance, that's kind of what we talked about for the earlier amendment. How in the world would that ever get reported to law enforcement? If they're consenting to it, then what is it that law enforcement's investigating? CHAIR KREISS-TOMKINS observed that there were "dimensions upon dimensions" of hypotheticals with this particular section of statute. For that reason, he said he found it discomforting in terms of [the legislature's] ability to anticipate all scenarios and consequences, intended or otherwise. Nonetheless, he said he appreciated that Amendment 4 was trying to narrow and refine [the language]. 5:28:46 PM REPRESENTATIVE KAUFMAN inquired about the term "physical identity," as opposed to "identity." He questioned whether "physical" was the appropriate wording. REPRESENTATIVE TARR reported that she had discussed that wording with Legislative Legal Services in an attempt to carefully select the language. She explained that the drafter believed that adding "physical" would help clarify the intent. She addressed the built-in protections in the criminal justice system, explaining that the police would have to investigate and feel that they found sufficient evidence to prove beyond a reasonable doubt that a crime had occurred; further, it would have to get "screened in" by the prosecutors. Consequently, she stated that many of the "what if" scenarios would never come to fruition because of the built-in protections along the way. REPRESENTATIVE KAUFMAN asked Mr. Skidmore to comment on the use of "physical" versus "actual" or some other adjective. MR. SKIDMORE acknowledged that in reading Amendment 4, he had the same concern about how to differentiate "physical identity" from "characteristics, traits, or accomplishments," as some of those could be physical. He suggested that "actual" or "true" could be an appropriate replacement and provide the type of clarity that the committee was looking for. 5:34:09 PM REPRESENTATIVE VANCE believed that the language in Amendment 4 was getting closer to capturing the intent. She asked for the bill sponsor's perspective on replacing "physical" with "actual." Additionally, she asked Mr. Skidmore whether "actual identity" would provide more flexibility for the prosecution. MR. SKIDMORE was unsure whether it would broaden opportunity. He did, however, believe that it would provide clarity as to the committee and the sponsor's intent. CHAIR KREISS-TOMKINS asked for Mr. Stinson's perspective on the relative merits of "actual" versus "physical" and the clarity afforded by one versus the other. MR. STINSON said he could understand the tension with either word. He shared his understanding that the legislative intent was to prevent a situation where a person was impersonating someone's girlfriend, boyfriend, spouse, significant other, and etcetera. He believed that Amendment 4 was closer to capturing that intent; however, he pointed out that it could still allow for a situation in which an individual impersonated a celebrity to gain consent to engage in sexual relations with another person. Nonetheless, he noted that there would still be obvious protections built in to whether that would get reported, charged, and so forth. 5:39:59 PM REPRESENTATIVE CLAMAN suggested allowing more time for Representative Vance and Representative Tarr to discuss and come to an agreement on the issue before moving forward with the amendment. 5:40:21 PM CHAIR KREISS-TOMKINS announced that HB 5 was held over.