SB 20-OFFENSES AGAINST UNBORN CHILDREN  8:39:00 AM CHAIR SEEKINS announced SB 20 to be up for consideration. SENATOR FRED DYSON presented a committee substitute (CS) for the committee. SENATOR CHARLIE HUGGINS moved Version \P as the working document. Hearing no objections, the motion carried. MR. WES KELLER, staff to Senator Dyson, explained the CS. The primary difference in Version \P is added second-degree assault language. The paragraph that allowed for a conviction on the standard of a person acting recklessly, causing serious physical injury has been eliminated. Any situation where a pregnant woman unintentionally harms an unborn child has been removed. Any reference to alcohol consumption has been removed from the definition section. 8:41:04 AM CHAIR SEEKINS asked whether the sponsor was saying a child born with the presence of cocaine or with fetal alcohol syndrome (FAS) is of no concern. MR. KELLER responded SB 20 would not enable prosecution for those situations. In the interest of moving SB 20 forward, future legislation would have to address drug and alcohol abuse. CHAIR SEEKINS commented he is not willing to accept that premise. He stated FAS is child abuse. SENATOR DYSON agreed. CHAIR SEEKINS advised it was his intent is to make it illegal to harm unborn children with either legal substances or illegal substances. 8:42:33 AM SENATOR GRETCHEN GUESS asked Mr. Keller to explain whether the definition of "serious physical injury" has to accompany a premature birth or would SB 20 alter AS 11.81.900 to include premature birth. MR. KELLER preferred to let the Department of Law (DOL) answer the question. 8:43:57 AM MS. ANNE CARPENETI, criminal division, Department of Law (DOL), said the definition of "serious physical injury" is already in AS 11.81.900 and it includes the additional definition, which is low birth weight. SENATOR GUESS asked Ms. Carpeneti to explain how the law could hold someone accountable if the woman has only one fetus but not if there are multiple fetuses. MS. CARPENETI said the purpose for adding the fix to the definition is that multiple births will always have a lower birth rate. 8:45:36 AM SENATOR HOLLIS FRENCH asked Ms. Carpeneti the typical weight of a set of twins. MS. CARPENETI replied most are less than 5 pounds each. Senator Gene Therriault joined the committee. CHAIR SEEKINS commented low birth weight is a symptom but criminal causation would have to be proven. MS. CARPENETI replied in order to prosecute under SB 20; one would have to prove the other elements of the offense. Under the proposed AS 11.41.282 (a) (2), one would have to prove a person recklessly caused serious physical injury to an unborn child by repeated assaults even if each individual assault did not cause serious physical injury. CHAIR SEEKINS asserted reckless behavior has to first be shown. MS. CARPENETI agreed. She said there are other alternatives to define serious physical injury. There could be evidence that serious physical injury occurred without holding low birth weight as signature proof. CHAIR SEEKINS asked Ms. Carpeneti whether it was reasonable to assume that low birth weight is a symptom of serious physical injury. 8:48:26 AM MS. CARPENETI agreed low birth weight would be evidence of serious physical injury. CHAIR SEEKINS asked Senator Dyson whether that was his intent. SENATOR DYSON stated evidence shows being born early works against a healthy life. Activities that assault an unborn child are what SB 20 is attempting to criminalize. 8:50:28 AM CHAIR SEEKINS mentioned there are many things that would cause an early birth. He was hesitant to make the assumption low birth weight would be proof of reckless behavior. MS. CARPENETI clarified low birth weight is defined as serious physical injury in SB 20. Alternatives would have to be discussed with the sponsor. Chair Seekins announced a brief at ease at 8:53:07 AM. Chair Seekins reconvened the meeting at 9:05:52 AM. CHAIR SEEKINS explained the reason for going off the record was to allow the public audience to comment. He asked Ms. Carpeneti how to word SB 20 to reflect low birth weight as a symptom and not proof of serious physical injury. MS. CARPENETI commented the discussion off record was the possibility of changing SB 20 from defining serious physical injury to holding low birth weight as prima fascia evidence. SENATOR DYSON agreed. CHAIR SEEKINS: I think it is very important that we try to say the intent was the reckless part of it, plus the action was part of it and the result was serious physical injury. Low birth weight is a measurement of serious physical injury and isn't triggered without the criminal conduct. If we can conceptually amend this and have the DOL and the sponsor work together to word it that way, the Chairman would offer it as a conceptual amendment to Page 4, the Sections contained in line 3 through line 6. Is there discussion or objection to that conceptual amendment? Seeing none, we've adopted that as Amendment 1. SENATOR DYSON: For the record let me state it is not our intention a mother be charged because of a premature birth or a low birth weight child. It is our intentions that someone is charged if they have the criminal intent or reckless disregard and an assault on the woman precipitates a premature birth. 9:08:54 AM SENATOR FRENCH shared the concern of the committee Chair with FAS and FAE children. He said Page 3, lines 22-24 almost perfectly defines how a woman would cause FAE/FAS through consumption of alcohol. Each individual drink may not result in profound change to the fetus but accumulatively it does. CHAIR SEEKINS commented repeated testimony shows an FAS child costs the state over $1 million dollars. 9:11:27 AM SENATOR DYSON said SB 20 addresses human rights and protecting individuals against assault. 9:14:28 AM SENATOR DYSON added the medical community advocates pregnant women to abstain from alcohol. He has choose to steer away from the alcohol and drug factor in SB 20 because there is no current medical evidence to show when those substances become a factor in the development of a fetus. SENATOR GUESS asked Ms. Carpeneti whether a pregnant woman who stays in a domestic violence situation, which results in serious physical injury to her fetus, would be charged with a crime. MS. CARPENETI stated the law school definition describes conduct. The circumstances described would not qualify. 9:17:02 AM SENATOR GUESS commented it might be up to a jury to decide whether or not the woman should have left. MS. CARPENETI responded the behavior of the woman would have to be extremely reckless. CHAIR SEEKINS commented a judge would instruct a jury as to the standards which apply. MS. CARPENETI agreed. SENATOR DYSON commented the word "extreme" is a very high standard. 9:18:45 AM SENATOR DYSON reiterated SB 20 attempts to give protection when there is clearly reckless behavior. SENATOR FRENCH asked Ms. Carpeneti to respond to his earlier example of repeated assaults with regard to FAE/FAS. MS. CARPENETI advised SB 20 as currently written does not address alcohol. The repeated assaults section is talking about assaults against the law and drinking alcohol is not against the law. SENATOR GUESS said SB 20 is deciding a new class of crimes. She voiced distrust of the way society treats women in domestic violence situations. 9:21:36 AM SENATOR GUESS referred to Page 3 lines 2-3 and asked for clarification on the type of medical treatment referenced. Medical treatment could be the reason for a person to file a lawsuit. 9:23:35 AM CHAIR SEEKINS stated his interpretation was a miscarriage caused by visiting a doctor or dentist would not indicate a criminal act by the pregnant woman. 9:25:01 AM SENATOR FRENCH reminded the committee members of his proposed amendment identified as Version \X.5. SENATOR FRENCH moved Amendment 2. 24-LS0197\X.5 Mischel A M E N D M E N T 2 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 20(STA) Page 1, line 1: Delete all material and insert: "An Act enhancing penalties for crimes committed against  pregnant women." Page 1, line 3 through page 7, line 8: Delete all material and insert:  "* Section 1. AS 11 is amended by adding a new chapter to read: Chapter 32. Enhanced Penalties.  Sec. 11.32.100. Penalties for crimes committed  against pregnant women. (a) Notwithstanding another provision of this title or AS 12, if a person commits a crime defined in this title against a pregnant woman who the person knew or should have known to be pregnant that results in a miscarriage or stillbirth, the crime shall be punished in the following manner: (1) a crime defined as murder in the first degree under AS 11.41.100 shall be punished by a sentence of 30 - 99 years; (2) a crime defined as murder in the second degree under AS 11.41.110 shall be punished by a sentence of 20 - 99 years; (3) a crime defined in this title as a class A felony shall be punished as an unclassified felony in the manner provided for unclassified felonies in AS 12.55.125; (4) a crime defined in this title as a class B felony shall be punished as a class A felony in the manner provided for class A felonies in AS 12.55.125; (5) a crime defined in this title as a class C felony shall be punished as a class B felony in the manner provided for class B felonies in AS 12.55.125; (6) a crime defined in this title as a class A misdemeanor shall be punished as a class C felony in the manner provided for class C felonies in AS 12.55.125; (7) a crime defined in this title as a class B misdemeanor shall be punished as a class A misdemeanor in the manner provided for class A misdemeanors in AS 12.55.135. (b) The penalties in (a) of this section do not apply to acts committed (1) during a legal abortion to which the pregnant woman, or a person authorized by law to act on the pregnant woman's behalf, consented; (2) during any medical treatment of the pregnant woman or the fetus; or (3) by a pregnant woman against herself. (c) In this section, (1) "miscarriage" means the interruption of the normal development of the fetus, other than by a live birth or by an induced abortion, resulting in the complete expulsion or extraction of the fetus from a pregnant woman; (2) "stillbirth" means the death of a fetus before the complete expulsion or extraction from a woman, other than by an induced abortion, irrespective of the duration of the pregnancy.  * Sec. 2. AS 12.55.125(a) is amended to read: (a) A defendant convicted of murder in the first degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years. A defendant convicted of murder in the first degree  enhanced under AS 11.32.100(a)(1) shall be sentenced to a  definite term of imprisonment of at least 30 years but not  more than 99 years. A defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when (1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace officer, fire fighter, or correctional employee who was engaged in the performance of official duties at the time of the murder; (2) the defendant has been previously convicted of (A) murder in the first degree under AS 11.41.100 or former AS 11.15.010 or 11.15.020; (B) murder in the second degree under AS 11.41.110 or former AS 11.15.030; or (C) homicide under the laws of another jurisdiction when the offense of which the defendant was convicted contains elements similar to first degree murder under AS 11.41.100 or second degree murder under AS 11.41.110; (3) the court finds by clear and convincing evidence that the defendant subjected the murder victim to substantial physical torture; or (4) the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery.  * Sec. 3. AS 12.55.125(b) is amended to read: (b) A defendant convicted of attempted murder in the first degree, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, kidnapping, or misconduct involving a controlled substance in the first degree shall be sentenced to a definite term of imprisonment of at least five years but not more than 99 years. A defendant convicted of murder in the second degree or a class A felony enhanced under AS 11.32.100(a)(3) shall be sentenced to a definite term of imprisonment of at least 10 years but not more than 99 years. A defendant convicted of murder in the second degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years when the sentence is enhanced under  AS 11.32.100(a)(2) or when the defendant is convicted of the murder of a child under 16 years of age and the court finds by clear and convincing evidence that the defendant (1) was a natural parent, a stepparent, an adopted parent, a legal guardian, or a person occupying a position of authority in relation to the child; or (2) caused the death of the child by committing a crime against a person under AS 11.41.200 - 11.41.530. In this subsection, "legal guardian" and "position of authority" have the meanings given in AS 11.41.470.  * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. AS 11.32.100, enacted by sec. 1 of this Act, and AS 12.55.125(a) and (b), as amended by secs. 2 and 3 of this Act, apply to crimes committed on or after the effective date of this Act." CHAIR SEEKINS objected for the purpose of discussion. SENATOR FRENCH explained his amendment severely penalizes people who hurt women who they knew or should have known were pregnant. The approach of the amendment makes it an enhanced penalty to commit a crime against a pregnant woman. 9:28:56 AM CHAIR SEEKINS noted the amendment looks more like a competing bill. He said he had never seen an amendment that struck the whole bill and inserted a new one. SENATOR DYSON claimed the proposed amendment strips out a key provision, which establishes a new victim, the wanted unborn child. He expressed unwillingness to give up establishing a new category of victims. 9:31:29 AM Roll call proved the amendment failed 3-2 with Senators Huggins, Therriault and Chair Seekins dissenting. SENATOR GUESS asked Senator Dyson to affirm SB 20 would not seek to prosecute women who are victims of domestic violence. SENATOR DYSON affirmed. SENATOR HUGGINS moved CSSB 20(JUD) from committee with individual recommendations and attached fiscal note(s). There being no objection, the motion carried.