CHAIRMAN LEMAN called the Senate State Affairs Committee meeting to order at 9:05 a.m. and announced SB 11 ANTI-STALKING LAW to be up for consideration. SENATOR MILLER moved to adopt the CS to SSSB 11. There were no objections and it was so ordered. MARGO KNUTH, Department of Law, said the CS targets the same conduct as SSSB 11 targeted. It does it in the framework of the elements in existing assault statutes. It creates a misdemeanor offense of stalking in the second degree which is knowingly engaging in a course of conduct recklessly placing another in fear of death or physical injury. There are several ways stalking can be aggravated into a felony offense. The most significant is acts that are in violation of probation, release, or a temporary restraining order. The terms are defined specifically in this bill with Alaskan statutes in mind. The only way the CS for SSSB 11 differs significantly from HB 64, MS. KNUTH explained, is it explicitly creates an affirmative defense for constitutionally protected conduct. The purpose of the affirmative defense is to assure this law is not used to try to chill peoples exercise of their constitutional rights, like a public demonstration in front of an abortion clinic, for instance. Number 100 An issue raised by the affirmative defense is who should decide whether the person's conduct was constitutionally protected or not and juries are not trained to make that determination, MS. KNUTH said. She would prefer to see it as a question of law for the court to decide since that is their area of expertise. She suggested adding the language, "Whether an act of the defendant is a constitutionally protected activity is a question of law to be determined by the court before trial." Number 148 JERRY LUCKHAUPT, who drafted the bill, explained that a provision excluding constitutionally protected conduct does arise in most stalking laws. The terroristic threatening law, because that was a basic form of assault type of offense, was moved into assault. The CS also removed an existing relationship requirement between the victim and defendant for arrest without a warrant for the basic stalking offense, MR. LUCKHAUPT said. It also specified in Section 6 that the court may put restrictions on a release of the defendant. Number 218 In Section 7 the court cannot suspend the imposition of sentence of a person convicted of assault. Number 251 SENATOR ELLIS asked for a rationale for the use of arrest without a warrant in other instances. MR. LUCKHAUPT explained that you can always arrest without a warrant for a felony offense regardless of whether is was committed in front of a police officer or not. Traditionally, a peace officer cannot arrest without a warrant for a misdemeanor offense that was not committed in his presence. There are exceptions to that which usually involve some sort of danger to the public, like drunk driving. Stalking is similar to the fourth degree threatened assault type behavior. Number 308 BILL KELDER, Staff for Senator Kerttula, agreed with most of the changes in the CS because it made a better bill. He added that he was confused about what they were going to do with Ms. Knuth's suggested language, although he did agree with it. Number 324 SENATOR MILLER asked what happens if the jury decides the activity is constitutionally protected. MS. KNUTH replied that the most significant feature of what they are proposing is that the jury is not going to be instructed on the constitutional defense. If they are not instructed on it, nothing would prompt them to make that consideration. Under this bill, the judge would make that decision. SENATOR MILLER said he had no problem with this if the judge were neutral, but if he weren't neutral on the issue, he would have trouble. MS. KNUTH said the judge would either make the statement to the jury that it is constitutionally protected or he is silent on it. The jury would not be told there is a defense of constitutional activity. SENATOR MILLER commented that it probably wouldn't be a problem in this state where we have appointed judges. Number 399 SENATOR LEMAN asked if the judge determined the activity was constitutionally protected would it go to trial or would the case be dismissed? MS. KNUTH said that would depend on the circumstances. Number 415 BRIAN DAVIDSON, Bethel, supported the CS to SSSB 11. He said he works in a shelter for women who are victims of domestic violence and assault. There is a common perception among these women that the law is sometimes powerless to help them. This legislation would go far to give law enforcement additional powers to protect the members of the community. He wanted the committee to keep "stalker" as opposed to "terroristic threatening." He supported arrest without a warrant by a law enforcement officer and the provisions that would aggravate stalking into a felony offense. Number 437 SENATOR MILLER moved to pass CS SSSB 11 from committee. He then withdrew his motion. SENATOR DUNCAN moved to adopt the amendment suggested by the Department of Law. SENATOR MILLER objected saying he was still uncomfortable with it. SENATOR LEMAN objected as well. SENATOR DUNCAN withdrew his motion. Number 452 SENATOR MILLER moved to discharge CS SSSB 11 from Committee with individual recommendations. There were no objections and it was so ordered. SENATOR LEMAN brought SB 11 back before the Committee to receive testimony from Sergeant James McCann in Fairbanks. However, he had left after the discharge vote and so SENATOR LEMAN brought SB 1 back before the Committee.