SB 5-FAILURE TO REPORT CRIMES  1:34:22 PM CHAIR HOLLIS FRENCH announced the consideration of SB 5. SENATOR LESIL McGUIRE, Sponsor of SB 5, thanked Chair French for the work he had done on the bill, which included discussions with Kiva's mother. Providing background information, she explained that in 1999 former Senator Drue Pearce introduced a bill to require mandatory reporting of violent crimes against children. Due to controversy at the time, reporting violent crimes against adults was not included. In 2005 Senator McGuire requested a summary of what other states do, and she learned that about 10 states have mandatory reporting requirements for violent crimes. The descriptions vary from state to state, but they all stem from heinous crimes that caused community members to say that they wanted citizens to have the additional duty to report when they witness violent crimes. SB 5 would amend AS 11.56.765 to include adults and children in every case. It would be a crime for someone to witness and fail to report: 1) murder or attempted murder, 2) kidnapping or attempted kidnapping, 3) sexual penetration or attempted sexual penetration: a) without the consent of the person, b) if the person is mentally incapable, c) if the person is incapacitated or, d) if the person is unaware that a sexual act is being committed. The current language referencing age is removed, but the language about reporting in a timely manner is unchanged. Senator McGuire explained that Section 3 of CSSB 5, Version M would make it a class C felony for failure to report a violent crime. [Version M committee substitute was distributed but not formally adopted.] SENATOR McGUIRE said she and Chair French discussed an amendment to make it a felony for an unclassified crime and a misdemeanor in the other cases. Stating agreement with Kiva's mother she said that failure to report heinous crimes ought to carry a penalty that has teeth. It could be argued that if it's not an unclassified felony, then the serious felony penalty shouldn't apply. That discussion can come later, she said. SENATOR McGUIRE mentioned a recent conversation she had with the Department of Law regarding a citizen's obligation. She noted that someone made the observation that in 500 years of English law, there has never been the requirement for citizen bystanders to report crimes. The consequence of that is that citizens don't believe it's their job to respond. We accept the privileges of being a citizen of the United States and a citizen of Alaska and some obligations come with those privileges, she said. One of those obligations is to look around and respond if you witness something as heinous as what happened to Kiva Friedman and if you don't, that is an affront to our community. Responding to others when they are in need is the spirit of this bill. 1:40:17 PM SENATOR GENE THERRIAULT recalled that during the debate on Senator Pearce's bill there was discussion about a person's right to not self-incriminate. He asked if she had had discussions with DOL regarding situations in which a person is a party to the crime so his or her call to authorities could be self-incriminating. SENATOR McGUIRE said the right to not self-incriminate is the most difficult issue, but DOL also raised the question about whether reporting a crime opens an argument for immunity. It will be complex and DOL is looking at ways to improve the bill, she said. Other states have said that there might be a defense that says that if reporting would bring immediate physical harm to you or your family, then you don't have the obligation to report. That's a good argument and the only defense she would be amenable to, she stated. CHAIR FRENCH noted that a couple of affirmative defenses can already be found in AS 11.56.765. One defense is that the person reasonably believed that reporting would risk exposure to physical injury. For instance, a child might not report one parent committing domestic violence against the other parent. Another affirmative defense is if a person acts to stop the crime then there is no duty to report that he or she witnessed something. SB 5 would not affect those affirmative defenses. SENATOR THERRIAULT asked if either touches on the issue of self- incrimination. CHAIR FRENCH said his view is that it is a catch 22 that has not been resolved. It's an issue that would be good to get on the record because there are classic cases, such as Kiva's, where the law does apply, but there are some cases where that tool would not be used. SENATOR THERRIAULT asked if a person who is a partner to a crime would have immunity if he or she were to report the incident. CHAIR FRENCH said ultimately the person who commits the crime will never be the target of this particular charge. SENATOR THERRIAULT clarified he was talking about an accomplice. CHAIR FRENCH responded the same argument would apply. If a murder is committed in the course of a bank robbery, an accomplice would be charged with bank robbery, but not failure to report. 1:45:29 PM SENATOR WIELECHOWSKI added that a piece of legislation can not trump the constitution. A person would not lose their Fifth Amendment rights if this bill were to pass. SENATOR McGUIRE said it's simply a tool for prosecutors and sometimes the decision may be against bringing a case. CHAIR FRENCH agreed. SENATOR HUGGINS expressed the concern that the bill won't necessarily make good citizens. 1:47:21 PM SENATOR McGUIRE said it will send a message and serve as a method of punishing those who choose to turn a blind eye in cases that could save a life. The crimes that are included are narrow and easy to identify. The notion is that if someone is in a serious physical situation then a witness or bystander should pick up the phone. SENATOR WIELECHOWSKI referenced page 2, subparagraph (D) relating to the assault of a person. He questioned how that section might apply to a bystander witness who does not stop and report a drunk driver who has crashed into someone else. SENATOR McGUIRE replied that isn't the target, but if a reasonable person sees that a drunk driver caused serious injury to another person she would hope that person would call for help. CHAIR FRENCH added that to be prosecuted the person would need to know that there had been a car accident and that someone had sustained serious physical injury. Depending on the circumstances there could be a righteous prosecution, but the ultimate check is the discretion of the prosecution and the jury. 1:50:55 PM SENATOR THERRIAULT asked if the existing statutory language regarding reporting in a "timely manner" is a term of art and what it might allow. He asked if waiting three or four days before making a report would be timely. 1:52:03 PM SENATOR McGUIRE said she didn't see that mentioned during the debate surrounding Senator Pearce's bill and she isn't sure that phrase was chosen, but waiting three or four days to report rape and sodomy would certainly not be timely. The word "immediate" does raise the question of a person's duty. Language that would improve the bill is welcome, she said. SENATOR THERRIAULT asked DOL to interpret the phrase. CHAIR FRENCH asked Ms. Carpeneti to interpret the meaning of "timely manner" in the context of the statute. 1:53:53 PM ANNE CARPENETI, Assistant District Attorney, Criminal Division, Department of Law,(DOL) said it is unusual to see those words in criminal statute. She did not recall whether or not they were discussed when the law was originally enacted. The terms aren't as clear as you would hope if you were prosecuting a criminal case, she stated. SENATOR THERRIAULT suggested the committee consider changing the terms if they are unclear or poorly defined. MS. CARPENETI said she would like to review the bill history because she would expect to see the terms in a civil statute rather than a criminal statute. SENATOR WIELECHOWSKI asked if there is a more applicable term from a criminal perspective. MS. CARPENETI said she would like some time to review the issue before giving a suggestion. SENATOR McGUIRE read the following Senate Judiciary minutes from February 24, 1999: Senator Ellis asked how the new requirement for "timely" reporting in the bill would compare with the previous requirement for immediate reporting. Senator Donley observed that the requirement for timely reporting allows for a more flexible application. Ms. Carpeneti agreed. SENATOR THERRIAULT suggested that Ms. Carpeneti find out if that terminology has posed any problem. MS. CARPENETI responded the term "immediate" is probably even more problematic. The idea is for a person to call the police as soon as is safely possible. SENATOR McGUIRE said the idea is to find a word that reasonably falls between "immediate" and so much later that the call is not relevant. MS. CARPENETI said the terms "timely manner" are current language and to her knowledge they have not been interpreted in a court case. CHAIR FRENCH added that ultimately it would be a prosecutor and a jury decision as to what would constitute "timely." MS. CARPENETI mentioned the constitutional responsibility to not make something vague. CHAIR FRENCH asked Mr. Svobodny whether the current statute has been used to prosecute someone for not reporting a crime against a child. 1:58:28 PM RICK SVOBODNY, Chief Assistant Attorney General, Criminal Division, Department of Law, advised that the statue has never been used. CHAIR FRENCH hypothetically queried whether charges would have been brought against the three men in Kiva's case had this bill been in statute. MR. SVBODNEY said he was not in a position to answer, but the prosecutor commented that the three men were cooperative. Bringing charges under this statute could have resulted in tactical problems at trial because the men may have claimed Fifth Amendment privilege and demanded immunity. MR. SVBODNEY referenced the issue of timeliness and suggested the committee look at language under the requirement to report an auto accident. It has language about reporting immediately and in a manner that is safe for the person who is reporting. SENATOR THERRIAULT noted that states with similar laws use the terms "immediately", "reasonably practical", and "reasonably possible". CHAIR FRENCH opened public testimony. 2:01:56 PM LISA SOMMER, victim's mother, told the committee she was representing her daughter, Kiva Friedman, who was brutally murdered on April 26, 2003 by Jerry McClain. She related that three other people, all of whom knew Kiva, could have helped her or could have reported the crime, but they did nothing. According to Alaska law they did not commit a crime, but this is wrong, she asserted. When a person has knowledge that a felony is being committed he or she should be obliged to report it. She emphasized that that should be in the bill somehow. MR. SOMMER read page 2 of the Victim's Impact Statement that told about her daughter's decision to move to Alaska. Her career was moving forward, she bought her first house, she made new friends, and her artistic endeavors were expanding. Tragically, her daughter's life was cut short by a man who had none of her qualities. MS. SOMMER said Jerry McClain murdered her daughter directly, but the three men who arrived at the crime scene and did nothing murdered her indirectly. She emphasized that someone who has knowledge of a felony having to do with torture, abuse, rape or assault should have the duty to report. The fact that the men had no such responsibility is criminal in its own right and that should be changed. Jerry McClain's brother, Jesse, knew Kiva so this was more than a Good Samaritan civic duty violation; this was more like the federal misprision of a felony type violation, she said. She urged the committee to pass the bill to help protect women and children in particular and to consider using the words "knowledge of a felony" and "deliberate omission to report." The fact that the victim is known is important, she said. In conclusion she read her poem, Mother's Pledge. A copy may be found in the bill file. CHAIR FRENCH thanked Ms. Sommer for her testimony. 2:15:04 PM KATHY HANSEN, Staff Attorney and Interim Director, Alaska Office of Victims' Rights, reported that she worked with Ms. Sommer during the criminal prosecution of Jerry McClain. She explained that the bill the Alaska Legislature passed in 1999 arose from a Nevada murder case where a friend of the perpetrator witnessed the crime and did nothing to report. Kiva Friedman's case is similar and there is some probability she would still be alive had any of the witnesses called the police, she said. Furthermore, her death might not have occurred if this law had passed in 1999. MS. HANSEN said it's important that laws reflect a society's morals and there is no question that what the bystanders did in Kiva's case was morally wrong. SB 5 would serve an educational function that could prevent further deaths and help solve crimes. Passing SB 5 would provide an effective tool for prosecutors even if it's used infrequently. It would give prosecutors the discretion to prosecute offenders like Jerry McClain's friends; it would provide a fallback for prosecutors when the evidence is insufficient to prosecute; and it would help prosecutors in general because witnesses would know that coming forward is required. MS. HANSEN said United States vs. Weekly gives insight into the Fifth Amendment problems. The court held that if the person lies when giving information, then there is no Fifth Amendment protection and any information that is given would not be protected as privileged. She emphasized that it must to be clear that a defendant does not have an obligation to report if doing so would violate the privilege against self-incrimination. If that exception is included then there would be no forced immunity. Referencing the obligation to report a car accident, she said that if the purpose of the law is to educate the public then attaching a misdemeanor or small fine to not reporting is okay. MS. HANSEN suggested establishing an exception if the witness reasonably believes the crime has already been reported or if they are unable to report due to a duty to another, such as a small child. With regard to timeliness she suggested the language include, "a timely manner concerning the circumstances of the crime." Also, she suggested including a definition for objectivity to make it clear that what the prosecutor is proving and what the court or jury is looking at is that the person knew or should have known about the timely manner for reporting. Finally, there should be an objective standard that the defendant knew or should have known that a violent crime was occurring and that it should be reported. That would eliminate the question about what the person subjectively believed. 2:23:04 PM SENATOR WIELECHOWSKI asked if she had recommended a provision about excluding self incrimination. MS. HANSEN said yes, but Patricia Young's 1/17/07 legal opinion came out subsequent to the pre-filed bill. She suggested the committee allow the Department of Law time to review the opinion and consider whether or not a better model might apply. SENATOR WIELECHOWSKI asked if she had an opinion about whether prosecutions would be more difficult if the duty to assist was in statute. MS. HANSEN replied she believes the model in the packet is appropriate and she is convinced it's not unusual to have a duty to assist in appropriate situations. She read from the model: My interest in testifying is to protect crime victims, but as a citizen I think there are situations where it may not be clear that there is a crime but it would be clear that someone is in need of help. MS. HANSEN asked the committee to consider changing the statue to reflect the model language to apply to emergency situations where an objective and reasonable person would consider that a victim is in need of assistance to prevent imminent or perceived imminent danger of physical harm. SENATOR WIELECHOWSKI commented he could envision situations in remote locations in particular, where calling might not be feasible but assisting would be possible. MS. HANSEN mentioned the example of a disabled car in below zero temperatures where no one will stop to offer help. She emphasized that if you see someone in that kind of situation and you don't have a cell phone to call for help, then you ought to pull over. Furthermore, there should be a penalty for not stopping because the consequence of not doing so can be very serious. 2:26:56 PM SENATOR HUGGINS mentioned an abusive video clip that was posted on MySpace and commented that we have a youthful culture that views that sort of activity as recreational. He questioned the affect this law would have in that kind of situation. CHAIR FRENCH said when a scuffle or shoving incident segues into something more serious, it's appropriate to place a duty to report on bystanders. SENATOR HUGGINS mentioned the confrontation at an Anchorage football field where there was shooting. He didn't know how many witnesses there were or how many people called the police. CHAIR FRENCH said he supports an exception to the duty to report if you reasonably believe the crime has already been reported. 2:30:00 PM GERAD GODFREY, Chairman, Alaska Violent Crimes Compensation Board, read a response letter to the editor he wrote several years ago about the duty to report a violent crime and specifically the Kiva Friedman murder. He highlighted that although the crime itself was despicable, the fact that three other men were aware of the crime and did nothing to help the suffering woman was comparably depraved. Technically the three men weren't accomplices, but it's deplorable when citizens could act and they choose not to. When one enjoys the benefits of living in a civilized society there is a civic duty to comport with a minimum standard of decency. Furthermore, this civic duty ought to be largely non-negotiable. In a free society obligatory legislation offers a fine line to tread, but for the welfare of society it warrants treading, he said. MR. GODFREY related his extensive experience with victims of violent crime. More often that you'd expect someone was privy to the violence that was perpetrated yet elected not to intervene by simply notifying the police. He expressed the opinion that in civilized society there is no excuse for that. He applauded Ms. Sommer for sharing her story and perusing this legislation so there won't be other cases such as Kiva's. 2:33:08 PM MR. GODFREY referenced the movie "Schindler's List" that chronicles Oscar Schindler's efforts to save about 1,200 Jewish people from concentration camps and said what he did was exceptional. This legislation doesn't ask citizens to do anything exceptional at all. It would simply require what is akin to common civic decency. MR. GODFREY said the bill treads a fine constitutional line in that it would impart a duty to act when there is no previous duty. Comparing failure to report a violent crime with the criminal act of failing to file an income tax form, he said it's easier to call the authorities than to file a tax return. However, the morality of the two issues is chasms apart. Omission to act with regard to filing a tax return doesn't result in suffering and death, but omission to act in instances like Kiva Friedman's makes a difference in whether or not a life is saved. Kiva died of injuries that could have been treated had the three men called for assistance when they became privy to what was happening. However, it's not just Kiva's survival to consider it's also the reverberating impact to the secondary victims - husbands, wives, and children - whose lives are destroyed. He encouraged the committee and the Legislature as a whole to maintain focus on those victims as well. 2:37:09 PM CHAIR FRENCH found no questions or further testimony and closed public testimony on SB 5 He recapped three areas that need further attention: the timeliness issue, the exception for the reasonable belief that the crime has already been reported, and severity - unclassified versus other felony level crimes. CHAIR FRENCH held SB 5 in committee. At ease from 2:38:03 PM to 2:45:11 PM