SB 128-ELECTRONIC BULLYING  2:22:34 PM CHAIR COGHILL reconvened the hearing and announced the consideration of SB 128."An Act relating to the crime of harassment." This was the first hearing. 2:23:09 PM EDRA MORLEDGE, Staff, Senator Kevin Meyer, introduced SB 128 on behalf of the sponsor, speaking to the following sponsor statement: With advances in technology and social media, harassment by electronic means, or "cyberbullying," has become increasingly prevalent. Our current statutes allow for some forms of bullying to be handled within the school system, however not all bullying occurs on or near school property. In some extreme cases, cyberbullying has led to suicide. SB 128 will allow for punishment outside of the school system, and makes harassment of a person under 18 years of age by electronic communication a class B misdemeanor. MS. MORLEDGE noted that the bill had two zero fiscal notes. SENATOR WIELECHOWSKI asked if there was a rationale for saying that it's legal to call or send a letter to a person that is insulting, taunting, or challenging, but it's illegal if it's put in an email. MS. MORLEDGE offered her understanding that this simply adds to the current harassment laws that already cover written communication. SENATOR WIELECHOWSKI expressed interest in hearing from the Department of Law. 2:27:42 PM CHAIR COGHILL offered his understanding that electronic intimidation could be charged under AS 11.61.120(a)(1). MS. MORLEDGE responded that was technically her understanding, but other states have not been able to charge unless the communication is specifically identified as electronic harassment. CHAIR COGHILL opened public testimony. 2:28:31 PM DAISY MAY BARRARA, representing herself, Bethel, Alaska, testified in support of SB 128. She explained that her Alaska Native culture has a belief that language can kill an individual if used improperly. She said she believes this applies to electronic communication as well. She thanked the committee for paying close attention to this critical issue. 2:31:06 PM ARELENE BRISCOE, Alaska Nurses Association, Anchorage, Alaska, said she's been a nurse for 35 years and a board certified mental health nurse in Alaska since 1987. She reported that she works at an Anchorage hospital and daily sees the torment caused by cyberbullying through Facebook, Twitter, and now Snapchat. Children are the hardest hit population and suicides, suicide attempts, and suicide ideations are a daily occurrence and she sees the fallout at the hospital. She highlighted that the bill doesn't address this, but bullies need to be treated too because they are just as affected by mental health issues as the victims. Both are suffering and need help. 2:34:43 PM CHAIR COGHILL expressed interest in knowing how a juvenile bully might be treated as opposed to a bully who is older than 18 years of age. MS. BRISCOL discussed the importance of early intervention for kids who have been identified through the school system as having problems because they are doing some of the bullying. They need help before they get into the juvenile justice system, she said. SENATOR WIELECHOWSKI asked if the age limitation should be removed, like in Illinois, so the application is much broader. MS. BRISCOL said yes; women are bullied by their spouses. She added that this is different from a letter because once a communication is on Facebook it doesn't go away. SENATOR WIELECHOWSKI expressed doubt that this would apply to Facebook because it says "sends." SENATOR DYSON expressed concern about how people with significant disabilities would be affected if age 18 is left in the bill. CHAIR COGHILL said his research shows that most states don't have an age restriction, but it appears that the sponsor is most concerned about youth bullying. 2:39:44 PM ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, discussed drafting concerns with SB 128. She stressed in this draft the importance of not making conduct a class B misdemeanor that might, under certain circumstances, be more serious. For example, fear assault is assault in the fourth degree, which is a class A misdemeanor, or even a class C felony if it's assault in the third degree. She suggested modifying the language to say: "sends an electronic communication to a person under 19 years of age." She explained that to make it a crime to send this material, the culpable mental state for harassment in the second degree is with intent to harass or annoy another person. She said she assumes the other person is the child, so it needs to be clear that the electronic communication is being sent to that person. CHAIR COGHILL said he didn't believe that was the issue, because these communications sometimes are sent to a wide audience with the idea of denigrating a person's reputation. That person may not even see the communication. MS. CARPENETI restated that the prosecution has to prove the culpable mental state of intending to annoy or harass another person and it would be easier to prove if the communication was to that person. SENATOR WIELECHOWSKI observed that it's not clear whether the phrase "sends an electronic communication" includes telephone calls and Facebook and Twitter posts. He suggested the committee have a philosophical discussion about the question that the Chair raised because a person can do a lot of damage to another person by harassing them on their own Facebook page. MS. CARPENETI said that's the problem with electronic communication; it's difficult to forbid in a way that doesn't impose on a person's First Amendment rights. CHAIR COGHILL asked the principle of law for slander and how it might apply to cyberbullying. 2:44:22 PM MS. CARPENETI explained that a person can claim damages for slander in a civil action; it wouldn't be a crime. SENATOR WIELECHOWSKI added that challenging someone to a fight or threatening to kill them or their family would be harassment. MS. CARPENETI said depending on the circumstances it could be a fear assault. She also suggested repeating the word "fear" to clarify that the person is in fear or physical injury, in fear of severe mental or emotional injury, or fear of damage to the person's property. This will keep it from being mixed with other crimes. SENATOR WIELECHOWSKI asked her to talk about state of mind and whether it's objective or subjective and whether you know the person is fragile or not. MS. CARPENETI said her assumption is it means reasonable fear, which is an objective standard, but she'd like to think about it. CHAIR COGHILL questioned whether it ought to be explicit that it means reasonable fear. MS. CARPENETI commented that it's difficult to draft in a way that captures the potential harm of the conduct while also protecting the constitutional right to expression. SENATOR WIELECHOWSKI asked her to talk about the timeline for reasonable fear, because AS 11.61.120(a)(1) says the insults, taunts, or challenges have to provoke an immediate violent response. MS. CARPENETI suggested he pose the question to the sponsor. She said she assumes it means an immediate reaction but it doesn't say that, and the other provisions do. CHAIR COGHILL suggested the sponsor bring information about what other states have done in this area. 2:48:48 PM QUINLAN STEINER, Director, Public Defender Agency, Department of Administration (DOA), Anchorage, Alaska, stated agreement with Ms. Carpeneti's suggestion that it would help the bill to clarify that the electronic communication is to a particular person. Without clarification of what's been criminalized, it's too vague and would likely result in different views of what's covered in different prosecutions. There's also a lack of an imminent requirement that is seen elsewhere in fear assault statutes and even earlier in this statute where the insulting, taunting, or challenges are likely to provoke an immediate response. There's an immediacy component to it that's important in terms of defining what ought to be criminalized. Without that, it could be broadly interpreted to apply to many things, he said. MR. STEINER expressed concern with the suggestion to include the idea of fear of severe mental or emotional injury and instead suggested requiring some level of an imminent threat or imminent fear of physical injury. This would narrow the bill and eliminate risk an over broad application that unintentionally criminalizes certain conduct. CHAIR COGHILL asked his perspective of limiting the application of this law to people under age 18 versus applying it broadly to all ages. MR. STEINER replied his understanding is that the bill intends to target cyberbullying of juveniles, and that limitation eliminates the risk of prosecutions in areas where it doesn't make sense. SENATOR WIELECHOWSKI asked if the phrase "damage to the person's property" is overly broad. MR. STEINER agreed it is fairly broad and suggested amending the language to ensure that sending an email threatening to break another person's pencil wouldn't be criminal conduct. Juvenile conduct that you might not endorse shouldn't necessarily be subject to criminal penalties, he said. Responding to a question, he confirmed that an electronic communication could be prosecuted under AS 11.61.120(a)(1) if it was delivered in a manner that was likely to provoke an immediate violent response. That's why the imminent component is helpful, he said, because you could theoretically send an email that's harassing or taunting about something that would happen far in the future. 2:56:05 PM SENATOR WIELECHOWSKI asked if he sees any problems differentiating between electronic communication and written or verbal communication. MR. STEINER opined that differentiating those types of communication relates to the immediacy of both the impact and response. For example, it's hard to threaten imminent physical injury through a letter, he said. Including those runs the risk of criminalizing things that aren't meant to be criminalized. SENATOR WIELECHOWSKI asked if he sees any constitutional issues because threatening to damage a person's property in a letter inflicts the same amount of fear as making the threat in an email, but one person hasn't committed a crime and the other person has. MR. STEINER replied it's a policy question. As currently drafted, it's fairly broad and opens the potential for prosecutions of cases that might not otherwise be prosecuted. 2:59:04 PM CHAIR COGHILL asked the sponsor, the public defender, and the Department of Law to think about whether implementing this law might inadvertently cause further damage to a victim who has already been traumatized by bullying. SENATOR WIELECHOWSKI said it's a good point and it appears that many other states require school districts to adopt policies. He questioned whether that might be a better approach. CHAIR COGHILL held SB 128 in committee.