SB 202-HATE CRIMES  2:21:11 PM CHAIR FRENCH announced the consideration of SB 202. SENATOR BETTYE DAVIS, sponsor of SB 202, said she's not the first to introduce a bill about hate crimes, but she hopes to be the last. 2:22:45 PM THOMAS OBERMEYER, Staff to Senator Davis, read the following sponsor statement into the record: SB 202 makes any crime against a person a more serious or aggravated crime if it is motivated by race, sex, color, creed, physical or mental disability, sexual orientation, ancestry, or national origin. Such crimes are referred to as "Hate Crimes." Hate crimes are inchoate offenses which are crimes of preparing for or seeking to commit another crime. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the crime of assault in the third degree, the defendant must place another person in fear of imminent serious physical injury or intentionally or recklessly cause serious injury to another person by means of a dangerous instrument. If this crime was motivated by hatred, bias, or prejudice, under SB 202 it merges into a more serious hate crime and is punished at a higher level than normally would be afforded the underlying offense. Without creating a new list of "hate crimes" under AS 11.76, new Sec. 11.76.150 simply reclassifies the level of any crime up one notch if motivated by prejudice, bias, or hatred. For example, a class B misdemeanor becomes a class A misdemeanor; a class A misdemeanor becomes a C felony; a class C felony becomes a B felony, etc. Such reclassification, of course, increases the penalties appropriate to the classification in sentencing under AS 12.55. The need for SB 202 is apparent as incidences of prejudice and crimes against persons regularly continue to occur in Alaska and across the country in our increasingly diverse society. While SB 202 alone cannot eliminate prejudice, bias, or hatred, it will send a message that Alaskans will not tolerate hate crimes in any form, the consequences of which are very severe. When crimes are committed because of our differences, the effects reverberate beyond a single person or group into an entire community, city, state, and society as a whole. 2:25:10 PM MR. OBERMEYER pointed out that the bill is targeted at increasing the punishments. He noted that the drafter was available to explain his position as to the concerns raised by the ACLU regarding rights of association, gender identity, and mandatory minimum sentencing. CHAIR FRENCH asked if the bill is modeled after other hate crime legislation. MR. OBERMEYER replied the bill uses different language than the federal Mathew Shepherd legislation. It doesn't include the term "gender identity," which may be part of the impetus for the ACLU giving the language in this bill particular scrutiny. Current Alaska statutes and the Alaska Constitution use the words "sex, color, and creed" and there was concern that using language that is different than that might have unintended consequences. SENATOR WIELECHOWSKI asked if a person could be prosecuted under both state and federal law if this bill were to pass. MR. OBERMEYER replied his experience is that state law can do more but not less than federal law. CHAIR FRENCH added that it's not double jeopardy if you're prosecuted by the federal government or the state, even for the same act. 2:28:15 PM J. KATE BURKHART, Executive Director, Alaska Mental Health Board (AMHB), explained that AMHB was established in statute to serve in an advisory role for Alaskans who are affected by mental illness. She said she is speaking only for the board members and in favor of SB 202, particularly the provisions that protect people with physical and mental disabilities. Available research indicates that people with serious mental illness are at great risk of victimization whether it's violent crime upon their person or their property. A 2005 study from Northwestern University found they were 11 times more likely to be the victim of violent crime. While SB 202 targets those crimes committed because of the victim's disability and not all crimes inflicted on people with disabilities, it goes a long way to help protect the most vulnerable members of the community. It sends a message that crimes committed against people because of their disability are unacceptable and it changes policy by heightening the penalty for these crimes. 2:31:31 PM MARSHA BUCK, Board of Directors, Alaskans Together for Equality, Inc., said this is a statewide advocacy organization that was formed to advance civil equality for Alaska's gay, lesbian, bisexual, and transgendered citizens. She related that she serves on the board as a proud mother and grandmother. Her oldest daughter is in a lifelong relationship with another woman and that relationship has given her two grandchildren. She is testifying because she cares deeply about the personal safety of her daughter, her daughter-in-law, and her grandchildren. MS. BUCK said Alaskans Together for Equality supports SB 202 and its coverage of crimes motivated by prejudice, bias, and hatred based on inherent characteristics with which people are born, like sexual orientation. She said they recognize that hate crimes aren't limited to the gay and lesbian population. Rather, they occur throughout the minority community. The bill emphasizes that Alaska has no tolerance for these acts. MS. BUCK stated that Alaskans Together for Equality supports SB 202 conditioned on an amendment to include "gender identity and expression" in Sec. 11.76.150(a). Some people may see others as "too masculine" or "too feminine" and that perception may evoke a violent response that results in harm. It doesn't matter that the person who is perceived as different is heterosexual or gay to be a recipient of such a response. We contend that many Alaskans are in jeopardy of gender expression hate crimes, she said. In particular, youths are often subject to bullying based on expression that is different from the fluctuating norm. The term "gender identity" also includes those who are transgender, she said. 2:35:20 PM KELLI BURKINSHAW, representing herself and Alaskans Together for Equality, Inc., stated support for SB 202, which is designed protect the civil rights of individuals who may be targeted for violence or harassment based on who they inherently are due to their race or sexual orientation or membership in a group. She said she appreciates that the bill emphasizes that Alaska has no tolerance for hate crimes, but it leaves out transgender individuals. "It is essential that gender identity be included in this bill," she said. She offered to provide definitions. 2:36:43 PM SENATOR MCGUIRE said it would be helpful to get the definitions. MS. BURKINSHAW explained that "sexual orientation" is the personal and unique way a person perceives his or her sexual desires and expression toward others. It ranges from one of the opposite biological sex and runs along a continuum to someone of the same biological sex. "Gender" is the concept of femininity and masculinity. "Gender identity" is the sense of oneself as a male or a female or anywhere along or outside that continuum. "Sex" refers to biological characteristics a person has at birth so a transgender person is one who identifies their gender perhaps differently than their sex at birth. This bill will protect me as a lesbian and for that I'm happy; but the most painful wounds I carry are based on my gender perception, which is that I was perceived as too masculine as a child, she said. Those wounds last a long time. "Gender identity is very important and I'm very saddened to know that close to 40 percent - and estimates up to 60 percent - of my transgender brothers and sisters in community have experienced violent reactions. I know what that feels like and I would strongly urge you to include gender identity," she concluded. 2:40:08 PM JEFF JESSEE, CEO, Alaska Mental Health Trust Authority (AMHTA), said his testimony is focused on the parts of SB 202 that address hate crimes based on physical or mental disability. He related that many AMHTA beneficiaries are singled out for physical attacks resulting in harm and sometimes death. Clearly, these crimes are damaging to people. He told the committee that he was born with a cleft palate and because of that he was bullied and mocked and physically abused throughout his elementary school years. These bullies grow up and commit hate crimes and this is a time when society needs to stand up and say hurting people based upon their differences will be an additional penalty. "Both personally and on behalf of the Trust, I urge you to pass this legislation," he said. DAVID EASTMAN, representing himself, said that for the past six years he has served as a military police officer in Alaska and based on that experience he opposes SB 202. The motives for crime are bad, but the government doesn't need to insert itself; it isn't very effective when it tries to legislate morality. This bill attempts to make some people more equal than others and further politicizes our lives, he said. 2:46:41 PM QUINLAN STEINER, Public Defender, Public Defender Agency, Department of Administration, said his comments will focus on practical drafting concerns. The first relates to the use of the phrase "knowingly directed" because use of the word "knowingly" is theoretically inconsistent with the mens rea scheme. You can knowingly have a motive and criminalize that. It's really more along the lines of specific intent but it's hard to distinguish because the concepts differ, he said. The knowing part of the conduct would be the crime itself and motive is more in line with specific intent. By using the word knowingly you'd be confusing the issues and it could be confused as downgrading something you can't theoretically downgrade to a lower mens rea. A second concern relates to proof. Typically, motive is not a crime and by criminalizing motive, it broadens the proof of a criminal case beyond the act to the person. That creates a significant problem in conducting the trial. Essentially it puts the person's comments and speech and other things they've done throughout their life on trial as a way of proving a specific act. And it could go beyond the act itself and the comments that were made during the act. Together it creates a much broader trial than it usually is in criminal cases. 2:49:41 PM CHAIR FRENCH asked Mr. Steiner to send his specific drafting suggestions to his office. SENATOR COGHILL mentioned the relatively new aggravator in AS 12.55.155(c)(22) and said he'd be interested in knowing how often it's been applied because it seems that the same questions would apply. The language isn't exactly the same but the personal motive is more at issue than the act under that aggravator. CHAIR FRENCH asked Ms. Carpeneti to respond to that question at a future hearing. 2:51:12 PM JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said the ACLU of Alaska thinks it's important for the State of Alaska to go on record stating that all its citizens should be protected from targeted acts of hatred and violence. He emphasized the importance of adding the phrase "gender identity" to the bill because there is statistical evidence that individuals are targeted for their race, gender, religion, sexual orientation and gender identity. Individuals are attacked for being different and it's important for them to understand that they are protected. At the same time, there are protected associational and free speech rights that must be recognized. A person can be punished for the act of attacking a transgender or gay person, but they should not be prosecuted based on their association, their membership, or their past statements. A person has the right to hold their beliefs and they shouldn't be punished for them. Based on that, the ACLU asks that language be added to the bill that specifically states that at trial evidence should be introduced that directly relates to the crime, but not merely as associational or First Amendment rights. 2:53:32 PM CHAIR FRENCH closed public testimony and announced he would hold SB 202 in committee.