SB 20-OFFENSES AGAINST UNBORN CHILDREN  CHAIR GENE THERRIAULT announced SB 20 to be up for consideration and asked Senator Dyson to come forward. SENATOR FRED DYSON, prime sponsor, said he is particularly pleased with this piece of legislation because it reflects what he has learned from similar legislation he worked on in previous years. In April 2004, Congress passed the Unborn Victims of Violence Act and SB 20 is equivalent to that federal legislation. Because the federal legislation comes into force only when an unborn child is harmed or killed during commission of a federal crime, it doesn't impact on state law. States are neither forced nor precluded from compliance. SB 20 addresses that and accords the same level of protection to an unborn child when violent acts are prosecuted under state law. CHAIR THERRIAULT noted that his comments were addressed to the proposed \F version committee substitute (CS) and asked for a motion to adopt that as the working document. SENATOR THOMAS WAGONER so moved. There being no objection, \F version CSSB 20 was the working document. SENATOR DYSON explained that SB 20 amends the state criminal code to include not just the killing of an unborn child, but for assault and injury to an unborn child as well. He then noted he had an amendment for the committee to consider. 3:50:02 PM SENATOR DYSON stated this legislation would have no implication on abortion, the option of abortion, regular medical proceedings, or anything a woman might do to herself while she is pregnant. He said: What if a woman is drinking during vulnerable periods of the pregnancy and is causing soft brain injuries? And we've carefully excluded those kind of things from this criminal law section. ... It is my intent to just afford protection of an unborn child on a level that is reasonably equivalent to that protection we afford live born Homo sapiens. SENATOR DYSON reported that 30 other states have enacted similar legislation. Some 16 or 17 states have enacted legislation to provide protection during any period of gestation and 13 or 14 have passed legislation with old-fashioned language. 3:52:16 PM SENATOR KIM ELTON referenced page 2, lines 5,6 and 7 and said he didn't understand the language and asked whether it is defined somewhere. SENATOR DYSON said he thought so, but that is fairly typical language. WES KELLER, staff to Senator Dyson, said the drafter simply transferred the language, "extreme indifference to the value of human life" from the first and second-degree murder statutes and the word, "knowingly" is found throughout case law and is specifically defined in statute. 3:54:10 PM SENATOR ELTON referenced page 2, lines 16-19 that addresses manslaughter of an unborn child and noted that meeting one or all of the criteria, "intentionally, knowingly, or recklessly" could trigger manslaughter charges. He cited an example of someone driving too fast for conditions and getting into an accident that results in the death of an unborn child. In that circumstance he questioned whether the driver would be charged with manslaughter. SENATOR DYSON suggested the charge would be negligence that might rise to the level of criminal negligence. Transferable intent is a concept in law that holds the person who committed a crime responsible for harming an innocent bystander. 3:56:30 PM SENATOR ELTON referenced exceptions listed on page 3 and noted that if a pregnant woman harms herself and/or her unborn child she wouldn't be charged, but another driver that harms the woman's unborn child could be charged. SENATOR DYSON responded it isn't his intention to charge a woman for something she does herself. 3:58:22 PM SENATOR ELTON commented that this seems to set a disparate sentence requirement. The anomaly occurs because the pregnant woman might know she could harm her unborn child while another person might not even know the woman is pregnant. CHAIR THERRIAULT made the point that if a pregnant woman attempts to commit suicide and harms her unborn child in the process, she wouldn't be charged. SENATOR DYSON said that's correct under this bill. SENATOR ELTON referenced the analysis in the zero fiscal note from the Department of Corrections and asked the sponsor whether he anticipated a certain caseload. SENATOR DYSON surmised it would be less than ten cases per year. 4:01:36 PM SENATOR ELTON referenced the analysis in the DOA indeterminate fiscal note and asked if it's justified because it's not clear that charges could be brought for cases of inadequate prenatal care. SENATOR DYSON replied his assumption is that language on page 3, lines 28-29 would cover actions of both omission and commission. CHAIR THERRIAULT referenced page 3, lines 3-19 and asked for an explanation of the proposed change. 4:04:09 PM MR. KELLER explained they compared assault language for a live born person and came up with four degrees of assault against an unborn child that is roughly equivalent to assault on a live born person. SENATOR DYSON suggested it be considered a conceptual amendment to give the drafters latitude to make the language more conforming. CHAIR THERRIAULT recapped then questioned why two sections were removed and were added five. MR. KELLER replied four degrees of assault are addressed rather than two, affirmative defense is added, and finally a statement is included differentiating between assault and murder. 4:07:03 PM SENATOR ELTON asked if the amendment is drafted so it would be an affirmative defense if there were an assault instead of murder. MR. KELLER replied some sections require intent. In crimes against the unborn there is just murder of the unborn child instead of first-degree murder, second-degree murder, manslaughter, and criminally negligent homicide. SENATOR ELTON asserted there is a distinction between intent and knowing. It's an affirmative defense if it's an assault and you didn't know, regardless of intent. It's not a defense if it's a murder and you didn't know. 4:10:05 PM CHAIR THERRIAULT called on Ms. Smith. ANNIE SMITH, Public Affairs Manager, Planned Parenthood of Alaska, testified via teleconference to oppose SB 20 as currently written. She said: We respectfully request that the bill be reworked to focus on domestic violence against women and their unborn children. .... Committing violence against a pregnant woman is an abhorrent crime and it deserves to be severely punished.... The bill does not address women let alone pregnant women. The bill may be in conflict with current categories of crime or the new sentencing requirements that are being worked on with SB 56. ... We would support a bill that charged offenders with a felony for harming women and that charged additional aggravators should the outcome of harming a woman lead to a miscarriage or stillbirth. Moving the language of unborn child and murder of a fetus eliminates the pro-choice debate surrounding this bill. We all agree that domestic violence against women needs to stop. We all know the statistics that domestic violence is elevated when a woman is pregnant. In fact, the number one cause of death to a pregnant woman is homicide. Planned Parenthood urges you to amend the bill to focus on women and to allow us all the time to work on legislation that we can all agree on, legislation that makes pregnant women safer. CHAIR THERRIAULT noted that Ms. Smith focused on domestic violence, and made the point that it's not domestic violence if someone breaks into a woman's home and harms her. He asked if she was suggesting that the committee exclusively focus on behavior that would fall under the umbrella of domestic violence. MS. SMITH replied they aren't suggesting that other assault isn't included; they are simply focusing on a situation that is most likely to occur within a household. CHAIR THERRIAULT asked the will of the committee with regard to the sponsor's proposed conceptual amendment. SENATOR THOMAS WAGNER motioned to adopt conceptual Amendment 1. SENATOR ELTON said he wouldn't object to a conceptual amendment, but he would prefer to review the CS before moving the bill from committee. 4:15:49 PM. CHAIR GENE THERRIAULT stated that without objection SB 20 would be held in committee to provide the drafters and staff time to incorporate the proposed amendment. Furthermore, at Senator Elton's suggestion, a Department of Law representative would be available for questions at the next hearing.