SB 35-CRIMES;SEX CRIMES;SENTENCING; PAROLE  1:35:34 PM CHAIR HUGHES announced that the only order of business would be 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." CHAIR HUGHES remarked that she hoped to move SB 35 from committee today. 1:37:48 PM SENATOR REINBOLD asked whether Mr. Duxbury was familiar with SB 35, Version K. MICHAEL DUXBURY, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), Anchorage, said he did not have Version K before him. He said that he is in consultation with the special assistant for the Department of Public Safety and based on her information he is in agreement. 1:39:09 PM KELLY HOWELL, Special Assistant; Legislative Liaison, Department of Public Safety (DPS), Anchorage, stated that the department does not see any red flags. 1:39:35 PM SENATOR REINBOLD offered her belief that the bill was an improvement. She asked whether the department had taken a position on SB 35. MS. HOWELL answered that she can not speak for the governor's office, but the department is generally supportive of the bill. 1:40:15 PM JOHN SKIDMORE, Director, Criminal Division, Central Office, Department of Law, Anchorage, stated that the administration was in support of Version K of SB 35. CHAIR HUGHES congratulated Mr. Skidmore on his promotion to Deputy Commissioner. MR. SKIDMORE thanked her. He said that he will not assume the position as the Deputy Attorney General, Criminal Division, Department of Law until May 16. 1:41:40 PM SENATOR KIEHL asked about the change from knowingly to reckless. He asked whether the change in mental state causes strong concerns about justice and the likelihood of inappropriate convictions. 1:42:25 PM SENATOR SHOWER joined the meeting. 1:42:34 PM SENATOR KIEHL asked whether the public defender agency sees the change as something that will lead to higher costs. He wondered if it would lead to more jury trials. Finally, he wondered how this would interact with threshold cases, such as when a victim is in the early stages of dementia or has developmental disabilities. 1:43:13 PM QUINLAN STEINER, Director, Public Defender Agency, Central Office, Department of Administration, Anchorage, said he has concerns about the changes in the bill related to mens rea for sex offenses, especially when combined with the changes made to the elimination of the marriage defense. Simply put, these change the mens rea from knowingly to recklessly. This means that someone can have an honestly held belief that someone is not mentally incapable, incapacitated, or unaware and still be subject to prosecution. This is particularly problematic with the removal of the marriage defense without replacing it with a consent defense. This version of the bill would criminalize typical conduct between married couples or people in relationships. He predicted it would lead to the prosecution of people that one would not want charged or prosecuted. He predicted it would drive up costs of litigation. He said it makes it more difficult to understand the line between criminal and non-criminal behavior. It is especially difficult when individuals have dementia or are consuming alcohol. He said it is important to recognize that the belief that prosecutors will use their discretion and not charge cases should not be the basis for not being more specific about what is criminalized. There are many state prosecutors with a range of points of view on who should be prosecuted based on the definition in statute. He said the language has been broadened to the extent that convictions and prosecutions can be expected. Further, a person may actually consent to certain conduct, which will still be considered criminal conduct, even though the person fully consented. 1:45:58 PM CHAIR HUGHES asked Mr. Skidmore for further clarification. MR. SKIDMORE identified the two issues presented. The first issue is related to resources, and the second one is related to changing the mens rea for sexual assault as it relates to mentally incapable, incapacitated, or individuals unaware that a sex act is occurring and the interaction with the elimination of the marriage defense. MR. SKIDMORE agreed that some additional sexual assault cases involving victims who are mentally incapable, incapacitated, or unaware would be prosecuted, but it would be difficult to quantify the number at this time. He said he did not believe that a substantial increase in resources would be required or that the changes would result in unwanted prosecutions. He said the definition of reckless found in AS 11.41.900(a)(3) says that a person has to be aware of and consciously disregard a substantial and unjustifiable risk that the results will occur, or the circumstances exist. The scenario the public defender described was of a married couple with one suffering from a mental issue that resulted in impaired functioning. This language would require the partner without dementia to be aware of and consciously disregard a substantial and unjustifiable risk that the other person was suffering from a mental debilitation. The definition goes on to say that the risk must be of such a nature and degree that the disregard constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. Although the state might prosecute additional cases, he did not agree with the public defender that they would be unwarranted arrests. 1:50:06 PM SENATOR REINBOLD remarked that changing the standard from knowingly to reckless was really important. 1:50:37 PM KACI SCHROEDER, Assistant Attorney General, Central Office, Criminal Division, Department of Law, Juneau, said that she concurred with Mr. Skidmore's analysis. 1:51:57 PM CHAIR HUGHES moved to adopt Amendment 1, work order 31- GS1873\K.1, Radford, 4/4/19, which read as follows: AMENDMENT 1  OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 35(JUD), Draft Version "K" Page 15, lines 20 - 21: Delete "if the victim is at least six years  younger than the offender" Insert "under AS 11.41.438(c)" SENATOR SHOWER objected for discussion purposes. BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State Legislature, Juneau, explained that Amendment 1 was a conforming amendment. He referred to Section 24 and read the amendment. This would reference the criminal statute AS 11.41.438(c) to clear up any ambiguity, he said. 1:52:21 PM SENATOR SHOWER removed his objection. There being no further objection, Amendment 1 was adopted. 1:53:22 PM CHAIR HUGHES moved to adopt Amendment 2, work order 31- GS1873\K.3, Radford, 4/4/19, which read as follows: AMENDMENT 2  OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 35(JUD), Draft Version "K" Page 23, line 22: Delete "in-service" SENATOR SHOWER objected for discussion purposes. 1:53:34 PM MR. WHITT referred to Section 36 on page 23, line 22 of SB 35, Version K. He explained that Amendment 2 relates to the additional annual training for mandatory reporters of possible sexual offenses against children implemented in Sections 33-35. He said the committee was informed that the department had the means to provide computer-based training, but the term in- service implies face-to-face training. SENATOR SHOWER removed his objection. There being no further objection, Amendment 2 was adopted. 1:54:46 PM CHAIR HUGHES moved to adopt Amendment 3, work order 31- GS1873\K.4, Radford, 4/6/19, which read as follows: AMENDMENT 3  OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 35(JUD), Draft Version "K" Page 11, line 19, following "mechanism,": Insert "10 - 25 years;" Page 11, lines 20 - 22: Delete all material. SENATOR SHOWER objected for discussion purposes. 1:54:54 PM MR. WHITT said that Amendment 3 is a technical amendment that removes redundant language that Senator Kiehl identified. He explained that if a second offense occurs, it would be addressed by language on lines 25-26 of version K. SENATOR SHOWER removed his objection. There being no further objection, Amendment 3 was adopted. 1:56:07 PM CHAIR HUGHES moved to adopt Amendment 4, work order 31- GS1873\.K.5, Radford, 4/6/19, which read as follows: AMENDMENT 4  OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 35(JUD), Draft Version "K" Page 25, following line 11: Insert a new bill section to read: "* Sec. 44. Section 33 of this Act takes effect September 1, 2020." Renumber the following bill section accordingly. Page 25, line 12: Delete "secs. 42 and 43" Insert "secs. 42 - 44" SENATOR SHOWER objected for discussion purposes. MR. WHITT referred to page 25 of Version K. He stated this would add a new effective date of September 1, 2020, specifically related to the training requirements in Section 3 of SB 35, Version K. This would allow the department sufficient time to prepare training prior to the start of the school year. SENATOR SHOWER removed his objection. There being no further objection, Amendment 4 was adopted. 1:56:50 PM CHAIR HUGHES moved to adopt Amendment 5, work order 31- GS1873\K.6, Radford, 4/6/19, which read as follows: AMENDMENT 5  OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 35(JUD), Draft Version "K" Page 23, line 14: Delete "the report to the department or a law  enforcement agency as" Insert "a [THE] report [TO THE DEPARTMENT AS]" SENATOR SHOWER objected for discussion purposes. MR. WHITT said that Senator Micciche brought this technical amendment to the committee's attention. He explained that Amendment 5 would clean up the language on page 23, line 14 of SB 35, Version K. It would read, " obligation to make a report as required under (a) of this section." SENATOR SHOWER removed his objection. There being no further objection, Amendment 5 was adopted. 1:57:59 PM CHAIR HUGHES opened public testimony on SB 35. 1:58:38 PM BETH FREAD, representing herself, Palmer, spoke in support of SB 35, as amended. She said she appreciated the work the committee did on SB 35. 1:59:44 PM KEELEY OLSON, Executive Director, Standing Together Against Rape (STAR), Anchorage, spoke in support of SB 35. Although she has not had an opportunity to review the new bill draft, STAR would support removing the defense of marriage and the changes to sexual assault in the second degree. For example, she worked with a woman who was raped by her spouse when she was on prescription medication after gynecological surgery. The victim had to have subsequent emergency surgery. Her spouse was aware that she was not to engage in any sexual activity. This is one example of several that have occurred in Anchorage, she said. She commended the language in the bill that would increase and enhance statutes concerning the use of technology for sexual solicitation of minors. She stated support for returning sentencing levels to pre-Senate Bill 91 levels, which should enhance victim safety. She stated further support for having sex offenders from other states register as sex offenders. MS. OLSON expressed concern with language changes on page 22 of Version K, [to AS 47.17.020(a)] that requires that mandated reporting be made to local law enforcement agencies, as well as to the department. She asked for further clarification on that language since a process already exists for mandated reporting. She emphasized that reporting is considered a sworn duty and the organization trusts that the information is being relayed to the law enforcement agency or to the jurisdiction where the crime occurred, which is often not the same location. 2:03:06 PM CHAIR HUGHES characterized the changes in mandatory reporting as casting a wider net as a result of situations that have occurred in the schools with teachers and minors. This alerts the parties that besides reporting suspected sexual crimes to the department, the suspected sex offenses must also be reported to the nearest law enforcement agency. She expressed concern that some crimes may be reported to the principal and this language ensures that law enforcement is also informed. She thanked Ms. Olson for her input and suggestions. She said that one issue that was not changed is the consent language. She explained that Mr. Skidmore will work with the committee on this issue during the interim. She acknowledged that the language is archaic and needs to be fixed. However, the project is significant since it will have a domino effect. Mr. Skidmore is committed to researching this since other states have worked on it and Alaska can avoid some of their mistakes. She said she hoped to address this in January. CHAIR HUGHES related that the organization Community United for Safety and Protection requested legislators amend the House version of SB 35 to address police officers engaging in sexual conduct during investigations. She said this seemed quite alarming, but in conversations with law enforcement she learned that laws currently exist to prosecute officers who commit such crimes, and that this type of behavior is not condoned by either local law enforcement or the Alaska State Troopers. MS. OLSON responded that STAR is not aligned or engaged with that citizens' group. She surmised that this group has an agenda to decriminalize sex work and disregards any harm that may be caused by human trafficking. She said that STAR has been involved in several cases where local law enforcement personnel engaged in sexual misconduct, including former Anchorage Police Officer Anthony Rollins [who was convicted in 2011]. She offered her belief that the response from local law enforcement was stellar in regard to protecting and working with the victims to hold former officer Rollins accountable. She said she has heard anecdotally that the organization told people not to seek assistance from STAR. She emphasized that STAR would always be available for anyone in the community who was harmed. She said that STAR would make victims aware of available resources and their rights. No one should be subjected to sexual violence, she said. She further emphasized that STAR is not aware of any of the cases that group alleges occurred or any activity or pattern it attests is typical. That has not been STAR's experience, she said. CHAIR HUGHES remarked that if any such pattern exists, Alaska has laws to charge any officer engaged in illegal activity. She asked Deputy Commissioner Duxbury to speak to the Community United for Safety and Protection group. She asked whether an amendment was needed. 2:08:54 PM MICHAEL DUXBURY, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), Anchorage, said that he has been associated with the Alaska State Troopers for approximately 30 years. He has spent considerable time working undercover, and he has also served as the supervisor of many undercover operations. He echoed Ms. Olson's succinct testimony. He said that he participated in the investigation of former officer Rollins. He confirmed that current statutes provide a means to prosecute these types of crimes. He emphasized that Alaska State Troopers never engage in one-on- one operations related to illegal sex crimes. He said that the department's focus is always on the underlying criminality and the people involved in the crime. He said that everyone working in those covert operations is monitored by surveillance, in conjunction with the district attorney, or with the U.S. Attorney's office. Further, a high-level supervisor, the next level supervisor, and the line supervisor would all be involved. He said that these are dangerous situations with the criminal milieu behind the scenes and in that type of lifestyle. He said he has heard the supposition that these operations are one-on- one situations. In order for these allegations to be true, it would mean that the department had extensive corruption. He reiterated that laws are in place to prosecute any rogue officer who engaged in that criminal activity. He stressed that an officer engaging in that type of criminal behavior is abhorrent to professional law enforcement. He said that the department and the troopers hold up integrity and trust to the public. CHAIR HUGHES asked the record to reflect his testimony to inform the public that laws exist to address this and the importance of integrity among law enforcement personnel. 2:13:08 PM RODGER BRANSON, representing himself, Eagle River, spoke as an advocate of mental health services. He said he wanted to know about any subversive activity in Palmer. CHAIR HUGHES asked him to submit specific questions to Mr. Duxbury via her office, but to limit his testimony to SB 35. MR. BRANSON said he wanted to ensure that the bill would protect everyone. He said he would be concerned about relying on STAR to determine illegal activity since they could perhaps turn away a victim. He said the committee is doing "some awesome work that needs to be done," but he wants to ensure that [the bill] protects the people who need to be protected. 2:15:05 PM CHAIR HUGHES, after first determining no one wished to testify, closed public testimony on SB 35. 2:15:18 PM SENATOR REINBOLD expressed her thanks for the work on this bill. She said she was pleased that SB 35 has become a more victim- centered bill. She emphasized that she supports strengthening criminal law related to sexual assault. 2:15:52 PM SENATOR KIEHL expressed his thanks for the work on this bill. On the whole it is really good legislation and provides additional tools and resources for victims, he said. He expressed appreciation that the bill would eliminate the marriage defense. However, while the bill contains many good changes, it also increases the severity of the offenses that will use public safety resources. He offered his belief that increased penalties were unlikely to make a difference. Changes that will apprehend offenders not previously being caught are excellent ones, he said. He argued that penalties for some crimes were not on par with penalties for other crimes. He predicted those increased penalties would cost money to implement, but it would not improve public safety. He supported the intent language for more proactive work on Internet crimes against children because these provisions will catch criminals and help reduce the number of victims. He emphasized that Internet crimes against children are important ones to focus on and to use criminal justice system resources. Those are the most important changes this bill makes, he said. He predicted that some provisions in the bill will be litigated. He concurred that sex offenders who have committed sex offenses that are crimes in Alaska should be on a sex offender registry. However, the language in the bill also captures people who committed offenses in another jurisdiction that are not considered criminal offenses in Alaska. The Alaska Supreme Court has reviewed the Constitution of the State of Alaska and has acknowledged the punitive element for those on the sex registry. He offered his belief that it is unconstitutional to punish people whose behavior is not a crime in Alaska. He said he hopes that as the bill moves forward this issue would be addressed so that strong public protections are met, and the state does not waste time in court. SENATOR KIEHL stated support for eliminating the marriage defense, which is a good provision. However, he said that combining it with the change in mental state for the crimes of sexual assault in the second degree and sexual assault in the third degree worries him. He recalled that Mr. Skidmore read the definition of reckless. He offered his belief that this would create an ambiguous line. For example, it may be difficult to determine criminal behavior for marital relations when a couple has been married for a long time, but one partner develops dementia or has an early onset Alzheimer that gradually worsens. He agreed that the knowing standard is very clear, but this language also includes sexual contact. He emphasized the need to catch the "bad actors," but he had concern that combining the two changes would create some real problems. He said he is anxious to move SB 35 forward, but he believes that it could use additional work. 2:20:39 PM SENATOR MICCICHE thanked the committee for its work on this bill. He questioned how long the state needed to be listed as number one in the nation for the most sexually abused children before it remedies the issue. Since these crimes are increasing, he expressed his support for increasing the severity of the penalties for sexual assault crimes. He said that there is only one way to break the cycle. In many communities Alaska's perpetrators have been known for decades. For example, he said that Peter [Wilson] allegedly raped children for years before he killed 10-year-old Ashley [Johnson- Barr]. In terms of the registry, he said some of these acts should have been made crimes in Alaska years ago. For example, the acts Justin Schneider committed should have been a crime. Alaska is just now recognizing that some state criminal justice systems are more advanced than in Alaska. Many of these states have a far lower incidence of sexual abuse and sexual assault, he said. Children can be destroyed emotionally and physiologically. These children may later act out, so the cycle continues, he said. Not only do the children and their families pay with a diminished quality of life, but the state pays in almost every category in the budget. If these victims ever normalize, it would come after years of counseling. This bill attempts to address all of the issues the state is battling, including opioid abuse, alcoholism, suicide, domestic violence, and sexual assault. He said he wholeheartedly supports moving the bill forward. 2:23:13 PM CHAIR HUGHES said when gauging whether public safety is improved by increasing the severity of penalties, it is important to remember the statistics for sexual offenses. However, one reason the recidivism rates are low is due to the strict structure and the containment model used. The number of years sex offenders are incarcerated helps keep the reoccurrence low, she said. She said that she spoke with Alaskans about suicide prevention in her office recently. Part of getting to the root of the problem is "calling things what they are." The state has many children, teens, and adults who have been harmed. In some ways the victims suffer lifelong pain that could be considered worse than death. She said that in terms of Senator Kiehl's concerns about the marriage defense and the change in the standard of defense, prosecutors will target the bad guys. She said she did not share his concern that problems would surface. CHAIR HUGHES said that considering the horrific crimes that children suffer has made her cognizant of the prosecutors who work in the field. She asked members to give prosecutors "a shout out" because they deal with these victims daily. She said she hopes the tools [in SB 35] will be helpful. She acknowledged that it is not possible to eradicate evil with good policy, but she hopes that the legislature can help deter it. She acknowledged that additional work needs to be done regarding the consent language and on other issues that may surface. She looked forward to working with the department on these issues. 2:26:47 PM SENATOR REINBOLD moved to report the committee substitute (CS) for SB 35, work order 35-GS1873\K as amended, from committee with individual recommendations and attached fiscal note(s). There being no objection, CSSB 35(JUD) was reported from the Senate Judiciary Standing Committee. CHAIR HUGHES asked the record to reflect that the Legislative Legal Services, Legislative Affairs Agency, was authorized to make any technical and conforming changes in order to implement the adopted amendments.