CS FOR SENATE BILL NO. 135(JUD) "An Act relating to the crimes of assault and custodial interference; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. Senator Dyson, the bill's sponsor, stated that he had sponsored the bill on behalf of the Governor Frank Murkowski Administration. Therefore, he would defer to the Department of Law to present the merits of the bill. 3:21:42 PM DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, stated that this bill would address "two child protection matters that were made necessary by a couple of opinions by the" State's Court of Appeals. One case involved a woman who went to work and left her new boyfriend to baby-sit her nine-month old infant child. When she returned, she discovered that the infant was bruised around its head and face. She called the hospital and was told to observe the child for a few hours. She eventually took the child to the hospital. A Cat Scan was conducted on the child to determine whether there might be internal injuries and a blood test was administered. The child recuperated without any lasting injuries. Based on law that existed at the time the boyfriend, who claimed that the child's actions caused it to fall out of bed, "was prosecuted for assault". The Department of Law believed a provision of State law would allow a person who assaulted child to the point where medical attention were required, to be charged with a felony offense. The State "Court of Appeals took a very narrow view of what the term treatment meant and said that mere tests for diagnosing what's wrong with the child", even if the test is fairly extensive, would not constitute medical treatment. The tests that were administered were considered as a medical diagnosis, and therefore, the individual could only be charged with "a misdemeanor instead of a felony assault". Mr. Guaneli informed the Committee that the State of Alaska has a serious problem with assaults against small children including such things as "shaken baby syndrome". The Department believes that people who react angrily against such things as crying babies "really need the kind of felony level supervision and probation that a felony prosecution provides". Mr. Guaneli stated that Section 1 of the bill "would change the provision of assault in the third degree" which is a felony level of assault, "to make it clear that if the level of injury to the child would cause a reasonable caregiver to seek medical attention in the form of diagnosis or treatment that that would be sufficient to establish a felony level assault". The goal would be to protect children as much as possible and to ensure that the people who injure a child seriously enough to go to the hospital should be placed "under the appropriate form of supervision". 3:25:25 PM Mr. Guaneli stated that Sec. 2 of the bill would address situations involving child custody disputes in which a non-custodial parent with visitation rights might leave the State with the child. This situation in not uncommon, and the custodial parent might not hear from either the child or the other parent "for months or sometimes years". The Department's position has been "that the parent who took the child couldn't tell the jury later that" that there action was to protect the child. However, a recent Court of Appeals ruling allowed that argument. That ruling related to a case in which a father with visitation rights had repeatedly told the Alaska State Troopers and the Department of Health and Social Services that the "child wasn't being cared for"; however, no evidence supported that claim. The father eventually "took the child and left the State". Upon being caught, the father was allowed to explain to the jury that he had acted to protect his child. Mr. Guaneli stated that Sec. 2 would reverse that Court of Appeals' ruling. Current State Statute specifies that if "something is done out of necessity because it would prevent the greater harm from occurring", then it would be "an affirmative defense to a crime". This bill would allow that "affirmative defense of necessity in a custodial interference prosecution, but only if you hold the child for a maximum of 24 hours or until you have an opportunity to go to the police". Mr. Guaneli stated that this approach has been utilized for other offenses such as an escape from prison were the escapee to claim that such action was "to protect yourself from being brutalized". However, that person "must immediately turn" themselves into the police. Co-Chair Green asked regarding the reference to "an incompetent person" as reflected in Sec. 2(c), page two, line 20; specifically whether that language meant that that person must be "under the custody of another, even if they weren't a minor". (c) The affirmative defense of necessity under AS 11.81.320 does not apply to a prosecution for custodial interference under (a) of this section if the protracted period for which the person held the child or incompetent person exceed the shorter of the following: 3:28:58 PM Mr. Guaneli affirmed that to be correct. The underlying crime of custodial interference would involve "someone who takes either a child or an incompetent person, someone who is in custody of somebody else". Co-Chair Wilken asked the significance of specifying that Section 1 must apply to harming a child ten years of age or younger. Mr. Guaneli responded that that age reference is in existing law. The Statute was originally developed in response to assaults to children under the age of ten. "They were the least likely to be able to either defend themselves or run and get help." Co-Chair Green noted that the language being referenced, Sec. 1(C), page one, beginning on line 11, would also indicate that the person conducting the assault be age 18 or older. To that point, she asked whether State Statute exists that would address assaults conducted by those younger than 18 years old. Mr. Guaneli expressed that this language "was designed to apply to adults and not take into account children who may interact with other children". The goal was to draw a line "to avoid having juvenile delinquency proceedings if someone under 18 is causing injury to a child". Co-Chair Green asked whether other State Statutes might address the issue of a person under the age of 18 assaulting children. Mr. Guaneli clarified that standard misdemeanor assault provisions would apply to a person under 18 years of age who commits such an assault. The language in this bill would specify that a person age 18 or older would be subject to a felony. A person under the age of 18 would "be subject to the jurisdiction of the Children's Court". Co-Chair Wilken moved to report the bill from Committee with individual recommendations and accompanying fiscal notes. There being no objection, CS SB 135(JUD) was REPORTED from Committee with zero fiscal note #1, dated April 4, 2005 from the Department of Administration; zero fiscal note #2, dated April 1, 2005 from the Alaska Court System, and zero fiscal note #2, dated April 5, 2005 from the Department of Law.