SENATE BILL NO. 35 "An Act eliminating marriage as a defense to certain crimes of sexual assault; relating to enticement of a minor; relating to harassment in the first degree; relating to harassment in the second degree; relating to indecent viewing or production of a picture; relating to the definition of 'sexual contact'; relating to assault in the second degree; relating to sentencing; relating to prior convictions; relating to the definition of 'most serious felony'; relating to the definition of 'sexual felony'; relating to the duty of a sex offender or child kidnapper to register; relating to eligibility for discretionary parole; and providing for an effective date." 9:55:20 AM Co-Chair von Imhof relayed that the committee intended to hear an overview of the bill. Public testimony would be scheduled for another meeting. 9:56:49 AM Mr. Skidmore stated that SB 35 was defined to deal with sex offenses in the state. The bill was a broad // Some of the provisions had been removed // The bill Mr. Skidmore reminded that the state had the dubious position of leading 9:58:06 AM Mr. Skidmore addressed a Sectional Analysis (copy on file): Summary: This legislation makes sexual abuse of a  minor in the third degree a sexual felony if there is  a six year age difference between the perpetrator and  the victim. It also clarifies how to count prior  felonies when determining the appropriate sentencing  range when sentencing a person for a sexual felony and  requires out-of-state sex offenders to register in  Alaska when they are present in the state. The bill  makes indecent viewing or production of a picture of a  person under the age of 16 and indecent production of  an image of an adult a registerable sex offense. The  bill creates the new crimes of enticement of a minor,  repeatedly sending images of genitalia, and eliminates  marriage as a defense to most acts of sexual assault.  Section 1 Legislative Intent and Findings Expresses intent to overturn Williams v. State, 418 P.3d 870 (Alaska App. 2018) in regards to counting prior felonies when sentencing a person for a sexual felony and State, Department of Public Safety v. Doe, 425 P. 3d 115 (Alaska 2018) in regards to out-of-state sex offenders registering as a sex offender when they are present in Alaska. Also expresses legislative intent for the Department of Public Safety to make additional resources available to expand investigations of online exploitation of children. Section 2-3 Changes the mental state for sexual assault in the second degree (penetration; class B felony) and sexual assault in the third degree (sexual contact; class C felony) from "knowing" to "reckless" when the victim is mentally incapable, incapacitated, or unaware that the sexual act is being committed. 10:01:41 AM Mr. Skidmore continued to address the Sectional Analysis: Section 4-5 Eliminates marriage as a defense to sexual assault in all cases except when both parties consent and it is the nature of the relationship that is criminalized (i.e. probation officer/probationer, peace officer/person in custody, Division of Juvenile Justice Officer/person 18 or 19 and under the jurisdiction of the Division of Juvenile Justice). Mr. Skidmore added that the marriage defense was most problematic in situations where one spouse was mentally incapable, meaning that they were unable to understand the nature and consequences of their conduct. Section 6-7 Clarifies the applicable sentencing provisions for sexual abuse of a minor in the third degree (class C felony) when there is at least a six year age difference between the offender and the victim. The crime will be sentenced as a sexual felony under AS 12.55.125(i) if there is a six year age difference between the offender and victim. 10:05:10 AM Mr. Skidmore continued to address and discuss the Sectional Analysis: Section 8-10 Removes the word "online" from the crime of "online enticement" criminalizing any enticement of a minor regardless of whether the enticement occurs "online." Section 11 Makes unlawful exploitation of a minor an unclassified felony if the person has been previously convicted of unlawful exploitation of a minor or if the victim is under 13 years of age. 10:09:02 AM Mr. Skidmore continued to address the Sectional Analysis: Section 12 Amends the crime of indecent exposure in the first degree to include masturbation in the presence of either an adult or child. If the masturbation occurs in the presence of an adult the offense will be a class C felony. If it occurs in front of a person under 16 years of age it will be a class B felony. Section 13 Adds repeatedly sending unwanted images of genitalia to the crime of harassment in the second degree. Section 14 Separates "production" from "viewing" in the crime of indecent viewing or production of a picture. Section 15 Conforming amendment. Changes the word "photography" to "production of pictures." Section 16 Conforming amendment. Changes the word "photography" to "production of pictures." Section 17 Classification section. Makes production of a picture of a minor a class B felony (which will be sentenced as a sexual felony). Viewing of a minor is a class C felony (which will be sentenced as a sexual felony). Production of a picture of an adult is also a class C sexual felony. Viewing of a picture of an adult is a class A misdemeanor. Section 18 Clarifies that the crime of indecent viewing or production of a picture does not apply to activities that would reasonably be construed as normal caretaker responsibilities or a recognized form of medical treatment. 10:13:44 AM Mr. Skidmore continued to address and discuss the Sectional Analysis: Section 19 Adds a definition of "semen" to statute. Mr. Skidmore pointed out that the crime lab used a broader definition than just a fluid that had sperm in it; the medical definition of semen used by the crime lab would be added to statute. Section 20 Codifies a presumption that the court shall order the offender not to have contact with the victim as a condition of probation for cases involving sex offenses or crimes of domestic violence unless the court finds that contact between the victim and offender is necessary.   Section 21 Conforms the sentencing statutes for sex offenses to the change made to unlawful exploitation of a minor in section 11, indecent exposure in section 12, sexual abuse of a minor in the third degree in sections 6-7, and indecent viewing or production in section 17. Also creates an enhanced sentencing structure for distribution of child pornography if the offender hosted, created, or helped host or create a mechanism for multi-party sharing or distribution of child pornography. This section also creates a new sentencing range for a first conviction of distribution of child pornography of 4-12 years. Mr. Skidmore clarified that many of the provisions written into the bill were the result of work done in lower committees and had not been in the governors original bill. 10:17:31 AM Section 22 Clarifies that any prior felony counts for the purposes of determining the presumptive sentencing range for a person being sentenced for a sexual felony. Mr. Skidmore said that the clarifying language would ensure that sex offenders would be appropriately sentenced when they had prior felony convictions that happened to not be sex felony convictions. Section 23 Conforming amendment: new crime of enticement of a minor clarified in the definition of "most serious felony." Section 24 Adds sexual abuse of a minor in the third degree when there is a six year age difference between the perpetrator and the victim, indecent viewing or production of an image of a minor, indecent production of a picture of an adult, and the new crime of enticement of a minor to the definition of "sexual felony." Mr. Skidmore said that the definition would impact the use of a sex offense as a presumptive sentence enhancement, in discussions about pre-trial credit, and in probation. Section 25 Requires the Department of Corrections to notify the victim of a sex offense or a crime involving domestic violence of the option to request a protective order and provide contact information for victim resources. 10:19:30 AM Mr. Skidmore continued to discuss the sectional analysis: Section 26-29 Requires a person required to register as a sex offender or child kidnapper in another jurisdiction to register in Alaska when that person is present in the state. Also adds indecent viewing or production of a picture of a minor or indecent production of a picture of an adult to the list of registerable sex offenses. 10:20:32 AM Co-Chair Stedman understood that sexual offenders that came to Alaska from other states had to register or they would be in violation. Mr. Skidmore answered in the affirmative. Co-Chair Stedman asked what was required by current law. He referenced an individual living in his district that had been found to be a registered sex offender from another state. He believed that the provision would alleviate similar problems. Mr. Skidmore answered in the affirmative. Co-Chair Stedman supported the bill provision. 10:22:22 AM Co-Chair von Imhof asked whether it was necessary to make a change to the bill to speak to Co-Chair Stedmans concern. Co-Chair Stedman thought the bill accomplished what he believed to be a solution. 10:22:51 AM Senator Bishop referenced Section 32 and asked whether the bill sought to develop a database from scratch based on the word "develop." Mr. Skidmore stated that the concept had been added in another committee, and asked LAW and DPS to report on locations where sex offenses were occurring around the state. He said that the information was already available in various databases; a program would need to be written to extract the information from the databases, which would be provided in a detailed report to the legislature. 10:24:51 AM Senator Wilson considered the sex offender registry. He found it fascinating the process of registering from state to state was not a common requirement. Mr. Skidmore said that DPS received 8 to 10 calls per week from individuals inquiring whether they would be required to register as a sex offender if they moved to the state. He said that there was not a single, national registry for sec offenders, rather registry occurred on a state by state basis. Each state set their own laws about who was required to register. He shared that there were three different approaches to the issue: individuals were required to register in one state if they were registered in another (found in this legislation); registration would be required if the facts of the offense in one state would qualify you in another; finally, registration would be based on a comparison of the elements of the crime from state to state (current practice in Alaska). 10:28:01 AM Senator Wilson thought that the current practice of the state attracted sex offenders to the state. Mr. Skidmore lamented that this was one of the consequences of the current law. 10:28:26 AM Senator Wielechowski asked if a person was a sex offender in another state, and the person's conduct was not a crime in Alaska, would they be required to register in the state. Mr. Skidmore replied that the individual would be required to register. Senator Wielechowski understood that the Supreme Court had determined that sex offender registry was a form of punishment. He asked if it was likely that the court would uphold the proposed bill. Mr. Skidmore was not certain that the court had determined whether registering was a form of punishment. He believed that the court would uphold the law. He added that Alaska was not the first state to be making the change. 10:29:28 AM Senator Micciche summarized his understanding of the discussion thus far. He believed that the bill closed a loophole in the area of registration. He recommended that people read Section 12. He discussed the importance of tracking the movements of sex offenders. 10:31:44 AM Senator Shower mentioned that there were many archaic elements in the state's sex crime laws that needed to be updated. He supported the legislation. 10:33:10 AM CHRISSY VOGELEY, COMMUNITY RELATIONS MANAGER, OFFICE OF CHILDREN SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES (via teleconference), she spoke to the changes in the bill that affected mandatory reporters; how they reported and the amount of training that was expected. She stated that, currently, the Office of Childrens Services (OCS) mandatory reporters training was utilized by OCS workers and community partners, healthcare professionals, childcare providers, and other mandatory reporters in other departments. She understood that the Department of Education and Early Development (DEED) used a different training for mandatory reporters, which linked to the DHSS training. She cited Section 33 of the bill, which would require mandatory reporters to report child maltreatment that was the result of a suspected sex offense to OCS and the nearest law enforcement agency. She said that, right now, mandatory reporters were required to report to OCS only. The change would require an update to the mandatory reporter training and outreach to reporters to inform them of the change. She said that because the consequence of not reporting would result in a misdemeanor, outreach was vital to ensure that mandatory reporters were educated of the new law. She spoke to Section 36 of the bill, which required annual reporter training, and stressed that some outreach would be needed to inform mandatory reporters of the new training requirements. She spoke to the analysis in the fiscal note: The bill would require modifications to the departments mandatory reporter training due to both the new statutory definition of a sexual offense, as well as the new requirement in which mandatory reporters would need to report to both the department and the nearest law enforcement agency when there is suspected child maltreatment involving a sexual offense. The training resides in the Department of Health and Social Services website. The Office of Childrens Services would be involved in modifications. The cost to update the training module and ensure readiness for an increase in annual traffic would be $3.6. Mandatory reporters of suspected sexual offenses to children would require notification of the broadened communication methods of child enticement and exploitation, the requirement to report child maltreatment that involves sexual offense to both the department and the nearest law enforcement agency, and be advised that their training must occur annually. The department estimates that television and radio advertising as well as printed materials would be necessary for effective outreach to statewide mandatory reporters. The estimate for outreach is $62.0 and the estimate for printed materials is $6.9 for FY2020. In subsequent years, the department estimates that the cost for outreach can decrease to $21.0 for FY2021, FY2022, FY2023, FY2024, and FY2025. Due to the annual training component, it is necessary to achieve ongoing outreach efforts to ensure that mandatory reporters have full knowledge of the new requirements. The Office of Childrens Services estimates that the ongoing outreach would require one month of messaging. The Office of Childrens Services contracts with the departments commissioners office public information team to manage and promote the mandatory reporting module through a reimbursable services agreement. The Office of Childrens Services anticipates the total cost in FY2020 would be $73.3. The total cost in FY2021, FY2022, FY2023, FY2024, and FY2025 would be $21.0. 10:37:20 AM Co-Chair von Imhof said that the new fiscal note was being copied for the committee for distribution. 10:37:48 AM AT EASE 10:44:13 AM RECONVENED Co-Chair von Imhof addressed a new fiscal impact note from Department of Health and Social Services, OMB Component 1628. She reiterated the fiscal analysis. 10:45:29 AM Senator Bishop commented that Section 36 of the bill required school districts to provide mandatory training. He thought the legislature should support the implementation of the bill within school districts by providing proper funding to support the mandate. Co-Chair von Imhof agreed. She noted that invited testifiers were online to answer committee questions. 10:46:46 AM Ms. Vogeley mentioned the mandatory reporting training that would be required would be used by many of the mandatory reporters in the state, hence the need for a statewide outreach campaign. Co-Chair von Imhof suggested Ms. Vogeley confer with DEED to see whether OCS training materials could be used by school districts. Ms. Vogeley stated that DEED had its own training that it provided to districts. She assured the committee that conversations between the two departments were ongoing. 10:47:46 AM BETH GOLDSTEIN, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION (via teleconference), was most concerned with Section 2 and Section 3: the elimination of the marriage defense. The concern was that the change would capture couples where one spouse was in the other spouse's care. She explained that dementia was not a static condition under which lucidity could change hourly or from week to week. She asserted that during the periods of lucidity, consensual sexual contact could occur. She detailed that there were many situations where family dynamics could result in false accusations. She added that the increased penalties in the bill would lead to more litigation in cases, which would increase spending. 10:50:51 AM Co-Chair von Imhof tried to re-articulate Ms. Goldstein's points. She thought that by eliminating the entire section, actual cases of marital rape slip through the cracks. She asked if Ms. Goldstein had a suggestion in order to protect the subset of situations that she had described. Ms. Goldstein thought the matter could be addressed. Co-Chair von Imhof asked whether Senator Shower had encountered the issue in other committees. Senator Shower answered in the affirmative, although he recalled there had not been much time spent on the manner. He recalled that LAW had not felt that the change would not affect the subset significantly. 10:53:29 AM Co-Chair von Imhof thought it was important to note that the matter had been discussed in another committee. She noted that the bill contained an incredible amount of important legislation and the hope was to pass it within this legislative session. She though that if the issue could not be agreed upon in a timely manner, it could be revisited next year, but it should not hold up the entire piece of legislation. 10:54:21 AM Senator Wielechowski asked whether there was concern about the provision that required sex offender registration for offenders from other states. Ms. Goldstein stated that the agency had concern with automatic registration. She stated that there were states that had criminalized things that Alaska had not, and that those individuals would be subject to registering as sex offenders even though they ultimately would not have to register under Alaska law. She pointed out that offender registration could have an impact on housing options and procuring employment. She said that the crime that they were convicted of in the other state might not be something that Alaska had criminalized. Senator Wielechowski understood that in 13 states public urination was registrable as a sex offense. He asked whether this was true in Alaska. Ms. Goldstein replied in the negative. Senator Wielechowski listed that consensual sex between teenagers was a registerable offense in Georgia. He asked whether this was the case in Alaska. Ms. Goldstein replied no. Senator Wielechowski listed that in Colorado, a 13-year-old who repeatedly hugged a 14-year-old might be required to register as a sex offender for life. He wondered whether the same was true in Alaska. Ms. Goldstein did not believe so. 10:56:22 AM Senator Micciche thought the discussion was interesting and wanted to see a list of the crimes that should not be included as part of a sex offense registry. He did not think there was a national effort that unreasonably require an individual to register as a sex offender. He worried that offenders could be shopping around for states with more lenient registration requirements. 10:58:19 AM Co-Chair von Imhof stated that her office would work with the Public Defender Agency and work with LAW to decide on how to proceed with the bill. 10:58:39 AM Senator Wilson reiterated his support for the legislation as written. Co-Chair von Imhof thought there was room for further discussion. She stated that the bill was comprehensive and was a legislative priority. She wanted the committee to explore the concepts and concerns that were raised. 10:59:27 AM Senator Micciche supported the way the bill was currently written. 10:59:59 AM SB 35 was HEARD and HELD in committee for further consideration. Co-Chair von Imhof discussed housekeeping.