SENATE BILL NO. 222 "An Act relating to the crimes of harassment, possession of child pornography, and distribution of indecent material to a minor; relating to suspending imposition of sentence and conditions of probation or parole for certain sex offenses; relating to aggravating factors in sentencing; relating to registration as a sex offender or child kidnapper; amending Rule 16, Alaska Rules of Criminal Procedure; and providing for an effective date." SUE MCLEAN, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW explained that SB 222 makes important changes to several different provisions within the criminal laws, some necessitated by court decisions, oversights, or for the purpose of improving criminal law as it pertains to sex offenses. The bill provides elements for the crime of failure to register as a sex offender, which clarifies that the mental state for the crime is that the person knows that they must register. She stated that this creates a Class A misdemeanor defense of harassment for those situations in which a victim is subjected to a sexual touch over the clothing but does not have time to voice his or her lack of consent. If a person has two such crimes of harassment the second requires registration as a sex offender. The bill amends the distribution of indecent materials to minors provision to prohibit any distribution of pornography to minors. One added section provides that a portion of the proof must show that the pornographic material is harmful to minors. The bill corrects an oversight regarding state regulation in respect to pornography. She mentioned that Section 13 removes the word substantially when describing a crime in another jurisdiction that would disallow the use of a suspended imposition of sentence. The bill adds conditions of probation so that courts may require sex offenders to provide email or other electronic network addresses to their probation officer and the probation officer may provide them to the police. The bill amends the current aggravating factors providing that the sentence was aggravated by a factor in which the victim was particularly vulnerable. A requirement was added that local law enforcement report sex crimes to the department of public safety for statistical purposes and providing that DPS has the authority to withhold funding if reports are not made. One section permits the Attorney General to administrate subpoenas to internet providers in crimes in which there is reason to believe that an internet account has been used for the exploitation of children. The bill amends the rule pertaining to crimes involving child pornography to prohibit the court from ordering that the pornography itself be discovered directly to the defense or defendant preventing further distribution. The bill adds a section to the uncodified law of Alaska clarifying that the mental state for failure to register as a sex offender is knowing that one had to register, one failed to do so and the mental state does not attach to the failure to do so. 9:55:19 AM Senator Thomas observed that the mentioned changes "tighten up" the existing legislation to allow for appropriate prosecution. Ms. McLean concurred and added that the department has seen court cases in which the court held that a person who accesses child pornography with the intent to view it does not possess it. This bill changes the law to read that if a person accesses child pornography with the intent to view it, which is also a crime. Senator Olson asked how many people will be affected by the tightening of these loopholes. Ms. McLean responded that she had difficulty quantifying the number of people affected by the legislature. She noted that the department has prosecutions that cannot go forward without the changes in the law. Alaska has a high rate of sexual abuse and sexual assault leading to a variety of offenses to which these changes will apply. 9:56:59 AM Senator Ellis asked about Section 19, which appears to be an expansion of power for the Attorney General. He asked about the current state of the law and the expansion of administrative subpoena powers. He stated that he did not know the difference between an administrative subpoena and a regular subpoena. Ms. McLean replied that with the current state of the law, internet providers are unwilling to provide information about an internet account without a search warrant or subpoena. The department has no authority for issuing a subpoena except to subpoena materials to a grand jury and the grand jury must already be convened and investigating. The power to the Attorney General prevents the law enforcement officers from entering the involved process of obtaining a search warrant for the simple purpose of determining who owns an internet account used for the exploitation of children. 9:59:01 AM SEARGENT DEREK DEGRAFF, ALASKA STATE TROOPERS (via teleconference) summarized the process of acquiring a search warrant to obtain subscriber records. The subpoena would provide a tremendous savings to law enforcement officers in terms of man hours while identifying suspect accounts. Senator Thomas asked about the language on Page 3, Section 4. He asked about the removal of language and whether the material regarding the crime of distribution remains in the CS. Ms. McLean stated that the law limits the conduct and cleans up the language. The language on Page 3, Section 4 is covered in other parts of the bill. 10:03:20 AM Co-Chair Hoffman pointed out six fiscal notes, four from the Department of Administration, Department of Law, and the Alaska Court System. He continued with one fiscal note from the Department of Public Safety for $123.500 in general funds to enhance data collection and hire one full time criminal justice specialist. The final fiscal note from the Department of Corrections begins in FY12 when the department anticipates additional funding to cover the cost of increased numbers of prisoners. 10:04:09 AM JEFFREY MITTMAN, EXECUTIVE DIRECTOR AMERICAN CIVIL LIBERTIES UNION (ACLU), ALASKA (via teleconference) highlighted Section 19 regarding the administrative subpoena power. The ACLU takes seriously the issue of sexual abuse. When a neutral third party who has the power to oversee the requests is removed a door is opened for abuse. He mentioned documentation from the United States Department of Justice showing that when similar administrative subpoenas were allowed to the federal government, in fact abuses did occur. The records of reporters were accessed. The records of innocent Americans were accessed when irrelevant to an investigation. The problem is not the intention of the section, but the problem is that it opens the door to abuse by implementation of the section. Alaskan judges realize the value of warrants and serve as the necessary third party check to ensure that improper activity by DOL does not occur. He pointed out Section 16 where evidence is restricted to be viewed by defense attorneys or their experts in the offices of a prosecutor or of the government. The rule change places at risk convictions that could be obtained at trials of those involved in child pornography by providing a necessary appeal. 10:07:32 AM DAVID KAZARIAN, CITIZENS FOR CHANGE (via teleconference) stated that Section 17 states that sex offense means a crime or similar law of another jurisdiction in which the person committed or attempted to commit a sexual offense or similar offense under the law. He opposed the bill as written in that holding persons in Alaska to laws of other states imposes unconstitutionally imposed registration requirements upon individuals who have been labeled sex offenders. If a person lives in another state which retroactively requires that person to register for a crime committed 50 years ago in another state to then register in Alaska. The Alaska Supreme Court ruled ex post facto registration requirements to be unconstitutional and added punishment to a person who already served out a complete sentence. If a person lives crime free for decades, he does not deserve harassment or punishment. 10:11:06 AM SB 222 was HEARD and HELD in Committee for further consideration.