CS FOR SENATE BILL NO. 323(JUD) "An Act relating to sexual offenses, to those who commit sexual offenses, and to registration of sex offenders; amending Rule 6(r)(2), Alaska Rules of Criminal Procedure; and providing for an effective date." Co-Chair Sharp turned the floor over to Senator Pearce, sponsor of the bill to give her testimony. Her statement was as follows: "...The use of children in the production of sexually explicit material including photographs, films, videos and computer images is a form of sexual abuse that can result in physical or psychological harm to the children involved." "Individuals who utilize children as sexual objects or are sexually attracted to children, often seek out and collect sexually explicit material for their own sexual gratification. Access to the Internet has become one of the preferred methods of distributing and collecting child pornographic material. Several investigations across the country have revealed thousands of pieces of child pornography in the hands of child pornographers." "Congress passed the Child Pornography Prevention Act of 1996 and several states are taking action to strengthen their pornography laws. The Alaska penalty for distribution of child pornography is not more than five years, but law enforcement officers are encountering problems in trying to prove distribution. Offenders are often charged with, or plead down to Possession of Child Pornography, which is a Class A misdemeanor offence with a penalty of not more than one year of prison. [This is] unless the offender is convicted of more that one count and receives a consecutive sentence." "SB 323 increases the offences for possession and distribution of child pornography to a Class B felony offenses punishable by not more than ten years in prison." "The bill also creates the offense of Indecent Exposure in the First Degree if the offender knowingly masturbates within the observation of a person under 16 years of age. This crime would be a Class B felony. The bill makes the existing offense of indecent exposure to Indecent Exposure in the Second Degree. The penalty for this offense is increased to a Class C felony when committed before a person under 16 years of age, and a Class A misdemeanor when committed before a person 16 years or older." "The bill requires sex offender registration for the offenses of indecent exposure in the first and second degree and for the possession of child pornography. Currently, only offenders who are convicted for the distribution of child pornography are required to register." Senator Pearce then told the committee she introduced the bill at the request of an officer with the Anchorage Police Department. She said that officer was linked to the meeting via teleconference from Anchorage. She requested the committee to have an opportunity hear Officer Klinkhart talk about the reason he came and asked for the bill to be introduced. OFFICER GLEN EDWARD KLINKHART was invited to speak by Co- Chair Sharp. His testimony was as follows: "The reason that I became involved with this prior to joining the police department I spent some fifteen years as one of the state's more active computer people. [I] joined the force about two years ago and much to my surprise, I became involved in several cases involving high tech crimes. I imagined that my role would probably be in chasing down teen-age hackers and people that were moving decimal points in their businesses - that sort of thing. Much to my surprise, I became involved in assisting agencies including the APD, the US Customs Service, the Secret Service, Palmer Police Department and the Alaska State Troopers in cases involving crimes against children. This came as a bit of a shock to me. I didn't imagine even in my experience with computers that this sort of thing was nearly as prolific as it is." "Basically, a quick synopsis of some of the cases that we've worked: I have a couple of cases that are currently open that I can't talk about. But of the ones that I can, one that primarily started this was the case of an Eagle River man." "This particular man had been posting or putting information out on the Internet that he had pictures to trade. By pictures, I mean these were not just photographs. These were actual computer images - computer photographs of nude children. In fact, his preference (most of these people have a preference) was for young females between the ages of five and about sixteen. These pictures would range everything from full frontal nudity to actual sexual acts." "Working with US Customs on this particular case, it turned out that this case and most cases that we find even here in Alaska aren't just localized. They don't just start here they don't just end here." "In this particular case, Hawaii had served a search warrant on a gentleman they had found literally hundred's of pictures of child pornography. From there they discovered this person was trading - actually exchanging picture for picture with a gentleman from Indiana, I believe." "The gentleman in Indiana was a particularly lowesome individual. This particular person was having sexual encounters with his stepdaughter. He was getting her drugged and drunk and was then sexually assaulting her and video taping the act. He then would post them on the Internet, these photographs." "That caught the eye of the gentleman here in Eagle River who thought that that was pretty neat and began exchanging information." "He actually put a computer system on the Internet that allowed him to trade his photographs like trading baseball cards in a sense. 'I'll give you two of these for two of those.' He was pretty slick, really utilized the technology." "It used to be that these people who dealt in this kind of child abuse would have to go underground. There were underground newsletters. It was actually very hard to deal with, which is why US Customs dealt with it because most of the child pornography was coming from third world countries or parts of Europe. Now, because of the technology, you could be anywhere and be able to have access to it." "To make a long story short, we were able to, using computers, using technology and good old police work, serve a search warrant on this particular gentleman in his house." "In his house we discovered a computer which had over 8700 photographs of nude juvenile females. Those ranged from full frontal nudity, probably the least offensive, to actual children engaged in sex. 8700; I don't know if Senator Pearce brought her big pile of paper with her today, but next time you are in your photocopy room, stack 17 reams of paper on top of each another and you'll get a good idea as to how many pictures we're talking about. This is not just one or two, this isn't just an accidental, 'Oops, Look what I came across on the Internet.' These are people who are actively seeking this stuff out." "This particular gentleman I could not charge him under state - or I didn't feel it right to charge him with a simple A misdemeanor for this sort of thing. He was also involved in some other activities including wire fraud and mail fraud. We ended up having to go to the Feds. We ended up having to work with the US Attorney and the federal system, which luckily here in Anchorage works fairly well because they're good people and they were easy access. However, we're finding other investigators don't have that opportunity - don't have the ability to be able to have access to the federal government. In most cases we find that it is faster and more efficient to deal with it on a statewide level." "This is just one example. I have several cases that we're working on. I just did a search warrant last week on a similar case." "We have officers now that as our officers are becoming more technically savvy as we're trying to train them. We're starting to see more of this because we're able to look for it. No longer are we going to go in and find these people after they've sexually assaulted children and find the photographs. We're now being a little more pro-active in being able to find them with the photographs before they go out and actually assault children." "That was the primary reason why I felt it was necessary to talk to somebody like Senator Pearce and be able to bring this sort of problem to the forefront and give law enforcement - we already are learning the tools and have the technological tools to do this. We just are looking now for some help from the people of the State Of Alaska to give us some laws that we can work with and be able to in a sense stop these people from continuing to abuse our children." "Just to give you an idea of how widespread this is, I'm currently on-line on the Internet even as we speak and looking at people from Alaska... I've got people from Alaska right now who are in such areas as let's see, "Family Sex". That's an area where people can get pictures of family members engaged in sex. There's a person right now from Kenai who's logged on who's in an area called "Double Penetration". At any time day or night I can log on here and find people from Alaska who are peddling this sort of filth." "Its unfortunate that one of the great things about technology is it gives us more opportunity. The bad think is that it gives the bad guys more opportunities. They're trading this stuff, like I said, just like baseball cards. I'm just asking for some help and some support here in being able to track these people down and let them know the people of Alaska just are not going to stand for this." This concluded Officer Klinkhart's testimony. Senator Donley asked what it was about the federal law that was different from the state law that encouraged the officer to seek federal prosecution. Officer Klinkhart explained that the crime was a felony under federal law. He continued that given his druthers, he wanted to make sure that the particular gentleman got the best opportunity that the law would allow. Senator Phillips said he knew that the individual had been convicted and a sentencing hearing was scheduled for some time this month. He wondered if that had taken place yet, and if it had what the sentence was. Officer Klinkhart responded that he would be sentenced on Thursday. Looking at the plea agreement, Officer Klinkhart said the sentence would be between 25 and 33 months in jail. Like a lot of cases involving abuse of children, he continued, they found that the ability to plea the sentences down was a good tool. This was because it still allowed the judiciary branch of the government to work effectively, but also allowed in the real world, for young victims to be spared the court proceedings. He shared he was especially grateful for the plea provision in this case because there were sixteen families with girls who were victims of this particular gentleman in Eagle River. He was pleased that they didn't have to bring the sixteen girls into court and put them on the stand, some of who were as young as three years old. He appreciated having the law with teeth, yet also having the ability to lessen the charge and get the perpetrator to work with law enforcement thus avoiding the necessity of subjecting the victims to a trial. Senator Pearce wanted to note for the record that the committee had a letter from the University of Alaska- Fairbanks Police Department and one from the Chief of Police of the APD in support of the bill. She added she had received verbal support from a number of other police departments across the state. She pointed out that the support from APD was not just from Officer Klinkhart, but from the entire department. There were no further questions of the sponsor or APD officer. Senator Pearce moved for adoption of Amendment #1. She explained the amendment, which would delete the offense of Indecent Exposure in the Second Degree if committed before a person sixteen years or older, from the sex offender registration statute. She said this was because most of the sex offenders required to register had committed felony offenses. The Department of Correction had brought this to her attention, she said, because they wanted to be consistent. In talking to the drafter, she felt it was a mistake as they put the bill together. Amendment #1 was adopted without objection or discussion. Senator Pearce then offered a conceptual amendment for discussion of the committee. She said the Department of Law had pointed out Sections 13 and 14 (Page 5 Lines 5-11.) Those sections stated that when five years had passed after a teacher had been discharged for conviction of one of these crimes, he or she might petition the department to reissue a teaching certificate in spite of the conviction. One of the Governor's bill that dealt with child abuse, she said, deleted that ability for a teacher to apply to be reinstated five years after being convicted of one of these felony charges. She listed the charges as Distribution of Child Pornography, Possession of Child Pornography, Indecent Exposure in the First Degree, Indecent Exposure in the Second Degree, Unlawful Exploitation of a Minor, Indecent Viewing, Sexual Abuse of a Minor in the First, Second, Third and Forth Degree. In her opinion, someone who had been convicted of one of these crimes probably shouldn't be allowed back into the classroom even after five years. She then moved to adopt a conceptual amendment to remove the ability for a person convicted of one of the fore-mentioned crimes to petition for reinstatement of a teacher's certificate. According to the Drafter, the necessary changes would effect Sections 13 and 14. The areas of those sections that allowed the petitioning for teacher's certificates would be deleted, she explained. She told the committee the motion needed to be conceptual because there might be other statutory sites which would also be effected and need to be changed. Co-Chair Sharp ordered the conceptual amendment adopted, as there was no objection. He requested staff work with Senator Pearce to incorporate it into the new Senate Finance CS. Senator Donley asked if a representative of the DOL was available to answer questions. ANNE CARPENETI came to the table. Senator Donley pointed out that this was a complicated area of the criminal statutes. He told that because of the significant changes this bill would make to existing law, he wanted to hear the department's opinion. Ms. Carpeneti responded saying the DOL believed these were serious offenses and there was good reason for raising the level of seriousness for some of the offenses. However, she voiced concerns that some of the offenses were being raised too high of a level. She gave an example of the crime of Possession of Child Pornography, which would be raised to a Class B Felony. That would be the same level as Distribution of Child Pornography and Production of Child Pornography, she pointed out. She said the departments had concerns that the behavior being addressed was not the same level of seriousness. Whether possession is as serious as production was an issue the department wanted addressed. Similarly, Indecent Exposure in the First Degree under the bill was the same in the Governor's child protection bill, according to Ms. Carpeneti. In that bill, the offense was set at a C Felony, in this bill it was a B Felony, making the offence the same level of seriousness as Sexual Penetration of a 13-year old. The department disagreed as to whether they carried the same level of seriousness. She suggested the committee consider making Indecent Exposure in the First Degree as Class C felony and Possession of Child Pornography a Class C felony. Otherwise, she stressed the acts were serious and didn't disagree that the acts should be raised, but not to that level. Senator Pearce told the committee the issue had been discussed. One of the reasons she and the APD officer decided to raise the possession of child pornography level was because of the difficulty in proving distribution. The officers had found it difficult to put together a case against an individual they believed to be involved in distribution, but felt they could use the possession charge in the level were serious enough to incur adequate penalties. She emphasized, "Why else would anyone have 8700 pictures if they weren't trading them or doing something with them." She said it didn't make a lot of sense to keep that many pictures under the bed. She continued saying, law enforcement was interested in having the higher degree of penalty and if they needed to use in plea cases they could avoid making young children testify. She noted that to bring three and four-year olds to trial was very difficult on the children. For this reason, they wanted the higher penalty to use as a tool. Senator Donley said that sometimes when looking at particularly heinous crimes such as these, he had concerns over losing sight of the big picture of the criminal statutes. He stressed the importance of actual acts of physical violence and said he tried to compare changes to other areas to the actual violence. He said he was relying on the DOL to point out whether the legislation would by- pass other areas of violence. They should keep up with the other crimes, he felt. Ms. Carpeneti said she understood his point and that she had been comparing the crime to other crimes involving the sexual abuse of minors. Sexual Assault of a Minor in the Second Degree was also a Class B Misdemeanor, which included sexual penetration of a 13 to 15-year old child by a person over age 16. She warned that when trying to set the levels of what a crime should be, it was important to keep them in some sort of prospective. She understood the concerns about the difficulties in proving distribution of child pornography and the desire to have at least a felony charge for prosecutors to fall back on. That was why she suggested making the possession charge a Class C felony rather than a Class B felony. She pointed out that currently, the charge was a Class A misdemeanor, so the change to a Class B felony would be a step in the right direction. Senator Donley asked if there where any acts of violence against children, or for adults for that matter, that would be less than the mere possession of these items. Ms. Carpeneti replied that Assault in the Third Degree was a Class C felony. Senator Donley wanted to know if there was a charge of Assault in the Third Degree against children. Ms. Carpeneti said the charge could include physical assault against children not of a sexual nature. Senator Donley stressed to the committee that his worry was that the actual physical violence against children was a lesser offence than the possession of these heinous materials. He felt that the crime of a violent offence against a child should be as serious as possessing this kind of material. He spoke of a bill he submitted in 1990 to allow prosecution as a felony of violent crimes against children. He referred to permanent disfigurement to children. He wanted to keep the levels in line with the various offenses and prevent the people who commit the crimes lighter than those who just think about committing the crimes. Ms. Carpeneti pointed out to the members there was a bill, SB 218 sitting in the committee, which did address problems with child homicide. There were other bills in the Legislature this session they could look at. Senator Pearce said she understood what Senator Donley was saying, but pointed out that in order for there to be child pornography, somebody had to take a picture of the child. To her, that was just as invasive as an actual act of violence - it was an act of violence against the child. In her mind, this was just as violent as striking a child. She added that this created the same and perhaps worse psychological damage to the children in the future. This concluded discussion on this legislation. Senator Pearce made a motion to move Senate Finance Committee Substitute for SB 323 from committee with individual recommendations and accompanying fiscal notes. There was no objection and Co-Chair Sharp ordered the new CS be reviewed and approved by Senator Pearce before sending it to the Senate Rules Committee. Senator Pearce publicly thanked Officer Klinkhart for bringing the matter to the Legislature's attention. She acknowledged the great deal of time he put into the legislation. Co-Chair Sharp said it had been brought to his attention that SJR 42, while in the previous committee, did not receive public testimony from all interested parties. He announced his intention to assign the bill to a subcommittee for the purpose of taking public testimony via teleconference. After the public hearing process had been completed, the bill would be brought back before the whole committee, he announced. There was some discussion as to who would be on the subcommittee and Co-Chair Sharp said he would name the subcommittee chair and members at a later time.