SB 187-HARASSMENT; SEX OFFENDERS & OFFENSES  2:11:11 PM CHAIR HOLLAND reconvened the meeting and announced the consideration of SENATE BILL NO. 187 "An Act relating to criminal law and procedure; relating to the crime of harassment; relating to the duty to register as a sex offender; amending the definition of 'sex offense'; relating to lifetime revocation of a teaching certificate for certain offenses; relating to the definition of 'domestic violence'; relating to multidisciplinary child protection teams; relating to arrest authority for pretrial services officers and probation officers; and providing for an effective date." [SB 187 was previously heard on 2/23/22.] 2:11:30 PM CHAIR HOLLAND stated support for the governor's efforts to close loopholes and fill gaps in existing law. He noted for the record that members are not defending bad behavior by asking questions but are working to ensure that the public policies are well defined and clearly understood. 2:11:56 PM SENATOR MYERS said he was glad the bill would close a loophole by defining the crime of harassment in the first degree. He asked for examples of other crimes with a class C felony penalty compared to those that fall under a class A misdemeanor. 2:12:27 PM JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney General, Criminal Division, Department of Law, Anchorage, Alaska, related that a class C felony has a sentencing range of 0-2 years. He noted that numerous crimes fall into that category. He listed a few, including theft in the second degree, relating to theft greater than $750; assault in the third degree, which is conduct that would place somebody in fear by means of a dangerous instrument, such as a firearm or a knife; and forgery in the second degree, which would include a crime like forging a check. 2:13:17 PM SENATOR MYERS asked what the penalties were for assault in the first or second degree, and whether it was a class C or a class A misdemeanor. 2:13:32 PM MR. SKIDMORE related that assault in the first degree is a class A felony, which has a sentencing range of four to seven years with a maximum of 20 years. SENATOR MYERS expressed an interest and knowing what would be comparable in the class C felony range. 2:14:15 PM MR. SKIDMORE referred to AS 11.41.220, Assault in the third degree. He reviewed subsections (a). (a) A person commits the crime of assault in the third degree if that person (1) recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument; (B) causes physical injury to another person by means of a dangerous instrument; or (C) while being 18 years of age or older, (i) causes physical injury to a child under 12 years of age and the injury would cause a reasonable caregiver to seek medical attention from a health care professional in the form of diagnosis or treatment; (ii) causes physical injury to a child under 12 years of age on more than one occasion; (2) with intent to place another person in fear of death or serious physical injury to the person or the person's family member, makes repeated threats to cause death or serious physical injury to another person; MR. SKIDMORE related an instance of using a dangerous instrument in 11.41.220 (a)(1)(A), as previously mentioned, would be a person pointing a gun at somebody or holding a knife in a manner that indicates the person is about to stab someone. He explained that serious physical injury must create a risk of death or serious impairment, whereas physical injury would be a minor injury done by means of a dangerous instrument. He stated that he provided a few examples, but there were four or five more descriptions for assault in the third degree. 2:15:49 PM MR. SKIDMORE stated that [AS 11.41.210] assault in the second degree is a class B felony, and [AS 11.41.200] assault in the first is a class A felony. 2:15:54 PM SENATOR MYERS asked whether an assault in the fourth degree would be a class A misdemeanor. MR. SKIDMORE responded that assault in the fourth degree is a class A misdemeanor. He reviewed AS 11.41.230(a). (a) A person commits the crime of assault in the fourth degree if (1) that person recklessly causes physical injury to another person; (2) with criminal negligence that person causes physical injury to another person by means of a dangerous instrument; or (3) by words or other conduct that person recklessly places another person in fear of imminent physical injury. MR. SKIDMORE explained that "recklessly" causing physical injury would be a lower mens rea than in SB 187 for the crime of harassment than "knowingly." He related the highest mental state would be "intentionally." MR. SKIDMORE stated AS 11.41.230 (a)(2) relates to "criminal negligence," and paragraph (3) relates to "recklessly" placing another person in fear of imminent physical injury. For example, it is not the statement, "I hate you, and I'm going to hurt you;" but that the person is in front of another person and indicates they are ready to hit the other person, creating the threat of imminent injury rather than actually causing an injury. He summarized that those were the class A misdemeanor crimes for assault. 2:17:15 PM SENATOR KIEHL referred to the tiered and laddered system of seriousness for the crime of harassment. He recalled that the committee discussed when someone touches another person's inner thigh, and the person slaps the perpetrator's hand away. He related that would constitute a class B misdemeanor. If the the person patted the person on the buttocks, having previously had their hand slapped away, that would raise the crime to a class C felony. However, it seemed like comparable conduct. He asked for clarification on the disparity. MR. SKIDMORE answered that currently touching a person's inner thigh is a class B misdemeanor, and it would stay at that level. 2:18:57 PM MR. SKIDMORE reviewed AS 11.61.118, Harassment in the first degree. (a) A person commits the crime of harassment in the first degree if, under circumstances not proscribed under AS 11.41.434 11.41.440, the person violates AS 11.61.120(a)(5) and the offensive physical contact is contact (1) with human or animal blood, mucus, saliva, semen, urine, vomitus, or feces; or (2) by the person touching through clothing another person's genitals, buttocks, or female breast. (b) Harassment in the first degree is a class A misdemeanor. 2:19:50 PM MR. SKIDMORE explained that the penalty for this behavior was increased to a class A misdemeanor in SB 187 [on page 2, lines 25-31 to page 3, line 3]. Sec. 11.61.118. Harassment in the second [FIRST] degree. (a) A person commits the crime of harassment in the second [FIRST] degree if, under circumstances not proscribed under AS 11.41.434 - 11.41.440, the person violates AS 11.61.120(a)(5) and the offensive physical contact is contact (1) with human or animal blood, mucus, saliva, semen, urine, vomitus or feces; or (2) by the person touching through clothing another person's genitals, buttocks, or female breast. (b) Harassment in the second [FIRST] degree is a class A misdemeanor. MR. SKIDMORE reviewed the tiered approach that consists of a generalized "anywhere on the body" which is a class B misdemeanor; offensive physical contact with a substance [which is a class A misdemeanor], and the highest level would be a class C felony, in AS 11.61.117, as in SB 187. Sec. 11.61.117. Harassment in the first degree. (a) A person commits the crime of harassment in the first degree if, under circumstances not proscribed under AS 11.41.434 - 11.41.440, the person intentionally subjects another person to offensive physical contact by touching, directly or through clothing, another person's genitals, buttocks, or female breast. (b) Harassment in the first degree is a class C felony. 2:20:14 PM MR. SKIDMORE described those three areas, "another person's genitals, buttocks, or female breast" which is repeated throughout the statutory framework, as being more sexualized areas, so the conduct is elevated in the bill. 2:20:34 PM SENATOR KIEHL suggested this area might need work. He further suggested that the notion that it would be a less serious crime to put feces on someone than patting them on the buttocks seemed wrong. He recalled the initial presentation on the bill related a scenario where someone grabbed another person's crotch. He said he understood the mental state, but maintained it needed work. . SENATOR HUGHES agreed that touching the inner thigh was more invasive than touching the buttocks, and it should be adjusted. 2:21:38 PM SENATOR SHOWER recalled that the legislature made numerous changes with Senate Bill 91 and subsequent criminal bills. He recalled that several years ago, the committee spent an entire hearing on the overall effect of how a minor would be treated for sending explicit photographs since that frequently happens with the proliferation of cell phones and social media. MR. SKIDMORE responded that the bill addresses minors in several sections. He offered to walk through those and make sure that he addressed his question. The harassment crime that the department proposes doesn't have any age element of the person involved, but a minor could undoubtedly be a victim. He acknowledged that other crimes could also be applied. He would need to review the facts of a case to identify the offense, which could be more comprehensive and more severe than this one. The department would not charge a minor, a person under 18, in an adult court. However, this statute would be available for the Division of Juvenile Justice to consider for someone being adjudicated as a delinquent. 2:24:12 PM MR. SKIDMORE stated that nothing in the statutes for harassment addresses sending images. However, another subsection of the bill relates to changes in the Sex Offender Registry. Several years ago, the statutes made it a crime to send an explicit image of a minor. He stated that might be the discussion he recalled that a previous committee held. This bill has two subsections to address it. The current statutes read: Sec. 11.61.116. Sending an explicit image of a minor. (a) A person commits the offense of sending an explicit image of a minor if the person, with intent to annoy or humiliate another person, distributes an electronic photograph or video that depicts the genitals, anus, or female breast of that other person taken when that person was a minor under 16 years of age. (b) In this section, (1) "computer" has the meaning given in AS 11.46.990; (2) "distributes" means to deliver the image to another person by sending the image to the other person's computer or telephone; (3) "Internet" has the meaning given in AS 11.46.710(d). (c) Sending an explicit image of a minor is (1) a class B misdemeanor if the person distributes the image to another person; (2) a class A misdemeanor if the person distributes the image to an Internet website that is accessible to the public. 2:24:45 PM MR. SKIDMORE stated that [subsection (a)] relates to distributing a photo of genitals, female breast or anus of someone under the age of 16 to another person without that individual's consent. He noted those were the three sexualized areas discussed earlier. Suppose the person posted that image on a website. If so, it is now available for everyone. Theoretically, the person loses control of it by sending it to another person. However, when the image is posted online, the person has completely lost control over who has that image, what that party may do with it, and where else it may appear. He said in those circumstances that conduct is elevated to a class A misdemeanor. This bill does not alter either of those classifications. 2:24:57 PM MR. SKIDMORE explained that when a person posts an explicit image online, it creates sexual predatory concerns, and that person would be required to register under [Section 9] of the bill. 2:26:14 PM MR. SKIDMORE related that a minor would be impacted because the Sex Offender Registry provides additional protections to minors. If a minor is the one who posts it, the state does not require minors to register when they are sex offenders. The only other impacts in the bill related to teaching certificates, but that doesn't relate to the question. 2:26:49 PM SENATOR SHOWER asked if the bill should further clarify touching. He related unintentional or innocent touching that could occur at a bar when people are dancing, to avoid someone weaponizing it. MR. SKIDMORE responded that the administration chose to attach the highest mental element, the mens rea of "intentional." Thus, the person must make a conscious objective to cause an offensive physical touching to another person. It is not about accidental touching, for example, accidental touching of someone's buttocks or female breast that might occur in a crowded elevator. The lesser crimes of "annoying" conduct have a lower mens rea. If the person did not intend the touching to happen or was not being reckless to the fact that the touching was offensive to another person, it is not a crime. He emphasized that those are the protections. The burden of proof in a criminal case is to prove something beyond a reasonable doubt, which is not an easy standard to meet. He acknowledged that the committee has the purview to consider the bill and make adjustments. 2:30:08 PM SENATOR HUGHES asked if the penalty would be elevated if the victim's name is attached to the explicit images being sent or posted. She suggested that might be something to consider because it might be challenging to identify someone in a photograph but identifying the victim by name makes the crime more severe. 2:30:47 PM MR. SKIDMORE answered no. 2:30:57 PM SENATOR HUGHES expressed concern that a person could get angry at a person at the end of an evening out and might "weaponize" the touching behavior. MR. SKIDMORE answered that the department wrestles with this in sexual assaults. The department must prove that the evidence supports the allegation beyond a reasonable doubt. He cautioned that he was not suggesting that the person was lying or was wrong, but the burden of proof provides protection. He highlighted that is one reason why the prosecutors do not proceed with some sexual assault cases. 2:32:59 PM SENATOR KIEHL referred to posting an explicit photo of a minor to a public website. He said he was unsure where the line lies. He acknowledged revenge. He said he sends messages using apps, including Instagram or Snap Chat stories. He stated that the department might wish to respond in writing if his question is too complex. MR. SKIDMORE responded that he did not believe that the law expressly defines it. He stated that AS 11.46.710 (d) provides a definition. "Internet" means the combination of computer systems or networks that make up the international network for interactive communications services, including remote logins, file transfer, electronic mail, and newsgroups. The classification provision for the offense states that it is "an Internet website that accessible to the public" [AS 11.61.116(c)(2)]. The prosecutor would need to argue whether the social media website was accessible to the public. He related that he could imagine arguments that a person might use to defend their posting to websites, including that they had restricted access to the site to their friends. He was unsure the courts had resolved this issue. 2:35:54 PM SENATOR MYERS referred to Section 13 to the issue of whether pretrial officers could file a complaint. He stated that the bill would expand their authority from two to five offenses. He asked for the reason to extend this authority to pretrial officers rather than to prosecutors. 2:36:47 PM MR. SKIDMORE answered that currently, police officers could file complaints when they encounter criminal conduct, so it does not need to go through the district attorney's office. However, pretrial officers don't have the same designation, so express authority must be given. The expanded crimes include AS 11.56.320, Escape in the third degree. This means the individual has been released on condition for pretrial and has an ankle monitor for electronic monitoring. Frequently, the person will cut or tamper with the electronic ankle monitor. It would add AS 11.56.610, tampering with physical evidence that interferes with ankle monitoring, and AS 11.56.750, relating to unlawful contact. This is when a court has indicated pretrial that the defendant cannot come in contact with specific parties, usually the victim. As pretrial services officers monitor the defendants, they may realize the defendant came in contact with the victim. In those instances, the officers must call a law enforcement officer, who will collect the same information the pretrial services officer would collect. The officer would make the arrest, write up the report, and send the information to the district attorney, who will decide whether to bring criminal charges, summons, or arrest warrants. Under the bill, the pretrial service officers can make the arrest. He pointed out that the Department of Corrections incurred $800,000 in damage to electronic monitoring. 2:39:39 PM CHAIR HOLLAND asked about collateral consequences incurred by someone facing a felony conviction instead of a misdemeanor conviction. MR. SKIDMORE answered that the collateral consequences were challenging to describe. He stated that when a person becomes a felon, the person potentially would be on supervised probation. It would affect the felon's voting rights and right to use concealed weapons. He acknowledged that long firearms would be impacted by federal law. He stated it would also impact the person's ability to obtain employment. CHAIR HOLLAND asked how it would impact child custody. MR. SKIDMORE said he was unsure how it would affect child custody. 2:41:06 PM CHAIR HOLLAND asked if the individuals who were online to answer questions had anything to add, and they did not. 2:42:12 PM CHAIR HOLLAND held SB 187 in committee.