ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 4, 2020
3:01 p.m.
MEMBERS PRESENT
Representative Zack Fields, Co-Chair
Representative Jonathan Kreiss-Tomkins, Co-Chair
Representative Grier Hopkins
Representative Andi Story
Representative Steve Thompson
Representative Sarah Vance
Representative Laddie Shaw
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 198
"An Act relating to aggravating factors considered at
sentencing."
- HEARD & HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 182
"An Act relating to testing of sexual assault examination kits;
and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 198
SHORT TITLE: AGGRAVATING FACTORS AT SENTENCING
SPONSOR(s): REPRESENTATIVE(s) JOSEPHSON
01/21/20 (H) PREFILE RELEASED 1/10/20
01/21/20 (H) READ THE FIRST TIME - REFERRALS
01/21/20 (H) STA, JUD
02/04/20 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 182
SHORT TITLE: SEXUAL ASSAULT EXAMINATION KITS: TESTING
SPONSOR(s): REPRESENTATIVE(s) TARR
01/21/20 (H) PREFILE RELEASED 1/10/20
01/21/20 (H) READ THE FIRST TIME - REFERRALS
01/21/20 (H) STA, FIN
01/27/20 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
01/27/20 (H) READ THE FIRST TIME - REFERRALS
01/27/20 (H) STA, FIN
02/04/20 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE ANDY JOSEPHSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 198 as prime sponsor.
REPRESENTATIVE GARY KNOPP, Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 198 as a co-
sponsor.
NATHANIEL GRABMAN, Staff
Representative Andy Josephson
Alaska State Legislature
POSITION STATEMENT: Presented a PowerPoint presentation on HB
198, on behalf of Representative Josephson, prime sponsor.
KAREN LOEFFLER
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 198, as a former
U.S. Attorney for the District of Alaska.
REPRESENTATIVE GERAN TARR
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SSHB 182, as prime sponsor, with
the use of a PowerPoint presentation.
DAVID KANARIS, Chief
Scientific Crime Detection Laboratory
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on
SSHB 182.
ACTION NARRATIVE
3:01:08 PM
CO-CHAIR ZACK FIELDS called the House State Affairs Standing
Committee meeting to order at 3:01 p.m. Representatives Story,
Thompson, Vance, Shaw, Fields, and Kreiss-Tomkins were present
at the call to order. Representative Hopkins arrived as the
meeting was in progress.
HB 198-AGGRAVATING FACTORS AT SENTENCING
3:01:49 PM
CO-CHAIR FIELDS announced that the first order of business would
be HOUSE BILL NO. 198, "An Act relating to aggravating factors
considered at sentencing."
3:02:21 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor of HB 198, relayed that the proposed legislation
would create a modified statutory aggravator based on gender
identity and sexual orientation in paragraph (22) of the
aggravators [listed under AS 12.55.155(c)]. He said
approximately 32 states recognize some form of specific legal
safeguard within their respective criminal codes for persons of
the lesbian, gay, bisexual, transgender (LGBT) community or some
subset of the same. "Essentially 32 touch on some sort of
criminal aggravator in that larger cohort." It is accomplished
by providing a sentencing enhancement - or aggravator - in cases
in which the victim was targeted because of the individual's
gender identity or sexual orientation status. He mentioned that
"targeted" is self-explanatory.
REPRESENTATIVE JOSEPHSON explained that the enhanced sentence
could be perceived as either a deterrent to misconduct by a
perpetrator or protection of same sex orientation persons - a
historically victimized group of Americans. Alaska law lacks
any provision offering further deterrents - or punishment - to
defendants who target persons based on their gender identity or
orientation status. He lamented that sadly it sometimes takes a
horrific and unfortunate event to engender willingness to
provide a public statement in support of enhanced sanctions for
the targeting of persons based on qualities inherent in them.
Alaska recently experienced that type of incident.
REPRESENTATIVE JOSEPHSON continued by saying that typically when
a person is victimized by a felony outside of any targeting
related to his/her race, sex, disability, or such, a presumptive
statute applies and the greater society - while angered and
frustrated - is not specifically imperiled. He stated:
If we all see on the local news or read in the paper
that there was an assault, often we ask ourselves was
the person ... arrested and detained, and we are
relieved when we hear they were. And if you're not in
some defined protected group, you may view it in a
certain way as well. That is, if it was a crime of a
general nature, not targeting any specific group, then
... the normal human reaction is to say, "We have a
crime problem," but to be more relaxed certainly once
an arrest is made, but not suffer the anxiety that
goes with realizing the person who was targeted is a
person whose group I'm in too.
REPRESENTATIVE JOSEPHSON relayed that where there are
indications that a subset of society is an intentional target of
attack, that group can feel particularly threatened and with
cause. He mentioned [the 1993 U.S. Supreme Court case]
Wisconsin v. Mitchell - a case involving a white victim attacked
by African Americans. The Wisconsin Supreme Court asserted that
the legislature cannot have a constitutional law that aggravates
a sentence. Chief Justice [William] Rehnquist gave the opinion
that "hate crimes" are constitutional; he was concerned that
such crimes could create a state of anxiety that legislators
should feel free to protect.
3:06:41 PM
REPRESENTATIVE JOSEPHSON further stated that presently there are
37 different sentencing enhancements in Alaska law that allow
the court to add sentence time beyond the statutory presumptive
period. Currently AS 12.55.155(c), paragraph (22), specifies
that a sentence can be aggravated where "the defendant knowingly
directed the conduct constituting the offense at a victim
because of that person's race, sex, color, creed, physical or
mental disability, ancestry, or national origin"; under HB 198,
five words would be added - "sexual orientation or gender
identity". He said that Alaska is one of the 45 states that
have hate crimes, but not one of the 32 states that include
gender identity and sexual orientation [as a basis for a hate
crime].
REPRESENTATIVE JOSEPHSON added that under HB 198, the crime
would be charged as usual, and the prosecutor would be required
to announce the he/she will seek an aggregator. He said that
under the U.S. Supreme Court decision, in most instances the
same 12 jurors that made a felony conviction would be required
to determine whether beyond a reasonable doubt an aggravator has
been proven; that is, there was some hostility or hatred of that
targeted person.
3:09:17 PM
REPRESENTATIVE GARY KNOPP, Alaska State Legislature, as a co-
sponsor of HB 198, relayed that the incident that prompted the
proposed legislation occurred in his community. He stated that
the LGTB community is broadly defined and has grown across the
state. He was surprised to see 200 people attend a town meeting
in support of the LGBT community; the request of the group was
that the list of hate crime aggravators be expanded to include
sexual orientation and gender identity.
REPRESENTATIVE KNOPP described the three incidents that occurred
to the victim, Tammie Willis: a homophobic note was found on
her vehicle; her vehicle windshield and front end were smashed
in by a large boulder; and she was attacked at home by knife and
severely injured. He maintained that a prosecutor has a huge
hurdle to overcome in providing proof of an aggravator. He said
that the proposed legislation is in response to a request from
his community. To people who suggest that he is creating a "new
class of people" with special protections, he responds that they
are the same protections that are extended to any class of
people. He said that he expects that the list of aggravators in
statute will increase over time. He referred to the
"discrimination bill" [House Bill 184, introduced in the
Thirtieth Alaska State Legislature, (2017-2018)] and emphasized
that "we don't discriminate in this day and age for any reason."
REPRESENTATIVE KNOPP offered that some people don't like the
LGBT community; he is not asking them to like the LGBT
community; however, he is advocating that individuals in the
LGBT community are entitled to the same protection as other
groups.
3:13:25 PM
REPRESENTATIVE JOSEPHSON suggested getting data from the
Department of Law (DOL) on the number of times - out of 37
aggravators - paragraph (22) is the basis for an increase in
sentence above the presumptive range. He expressed his belief
that the use of paragraph (22) [in sentencing] is very uncommon
and maintained that the use of sexual orientation or gender
identity as an aggravator also would be uncommon; however, he
stated, "You need it when you need it, because if you don't have
it, then you're effectively saying this is just a typical
assault, when it's not a typical assault." He further
maintained that it is common in the criminal code to rely on the
facts to tell as best they can what is transpiring in the mind
of the assailant or offender. An example is a premeditated
homicide versus a homicide committed in a state of impassioned
fury; the premeditated homicide is treated more severely. He
added, "Here you're talking about the targeting of someone in a
very deliberate way, systematic way."
CO-CHAIR FIELDS asked Representative Knopp to discuss the
resolution passed by the City of Soldotna in support of HB 198.
REPRESENTATIVE KNOPP replied that the City of Soldotna passed a
resolution in support of the proposed legislation; the meeting
of about 200 people included many public officials from both
Kenai and Soldotna, as well as broad support. The City of Kenai
will consider a similar resolution tomorrow [2/5/20].
3:16:27 PM
REPRESENTATIVE VANCE asked why sexual orientation and gender
identity do not fall under "sexual discrimination," which is
already in statute.
REPRESENTATIVE JOSEPHSON responded that the issue is currently
before the U.S. Supreme Court. The essence of the dispute is:
the [President Barak] Obama administration's position was that
"sex" could include gender identity and sexual orientation; the
[President Donald J.] Trump administration has declared that it
absolutely does not. The dispute before the U.S. Supreme Court
is not about a criminal matter; however, one might argue that
the standard for defending an appellate review would be stricter
in a criminal case, because someone's freedom is at stake. The
court would interpret the law narrowly, and most likely a
challenge to a ruling based on gender identity and sexual
orientation being included under "sexual discrimination" would
fail. He expressed his belief that [as the statute is written]
Ms. Willis would not see her assailant suffer any additional
sentence.
3:18:55 PM
REPRESENTATIVE VANCE suggested that in view of "sexual
discrimination" being narrowly defined by the courts,
definitions for sexual orientation and gender identity should be
added to the statute.
REPRESENTATIVE JOSEPHSON expressed his belief that no
definitions were included for any of the aggravators - creed,
disability, and so on. He suggested that to do so would be
burdensome and provocative; "it would needlessly delay the
movement of the bill in a way that ... misses the point." He
maintained that what is being discussed here is: "What's in the
mind of the defendant?" He said that it is less important
whether someone truly was a same sex-oriented person; what is
important is that the defendant believed the person was. He
stated that there are many instances for which the Alaska
Supreme Court goes to the dictionary for definitions. He
suggested that Representative Vance could offer a definition;
however, he opined that it is not required.
REPRESENTATIVE VANCE expressed that before the law is imposed on
the members of a jury, the [parameters] of the terms should be
narrowly defined. Deciding what a defendant is believing or
thinking is a heavy burden on jurors; the legislature should
provide the scope of what the legislative intent is.
3:21:55 PM
REPRESENTATIVE HOPKINS asked Representative Knopp what the note
on Ms. Willis's vehicle said.
REPRESENTATIVE KNOPP replied he did not remember exactly. He
confirmed that the note referred to the victim's sexual
orientation, not gender. In response to Representative Vance,
he said that in conversations with lawyers, they confirmed the
distinction - not hating a person because of gender but because
of being gay or having had a transgender operation. He
mentioned that the lawyers said, "That's the difference. You
don't necessarily hate the "sex," but you do when they modify
their behavior in that sense." He maintained that is the reason
for needing "sexual orientation" in the proposed legislation.
He added that the perpetrator acts on his/her hatred; it's not
just a single act, but repeated acts; and not something he/she
would do against any other male or female.
REPRESENTATIVE JOSEPHSON said that to be clear, the definitions
follow the chapter. He referred to the definitions for the
chapter listed under AS 12.55.185 and pointed out that race,
sex, color, creed, physical or mental disability, ancestry, and
national origin are not defined. He maintained that the state
has had this list of aggravators for decades, and there has been
no need to define the terms. He opined that defining the terms
is unnecessary.
CO-CHAIR FIELDS commented on the incident.
3:26:16 PM
CO-CHAIR KREISS-TOMKINS asked whether the DOL Criminal Division
has been consulted to answer the question of whether the current
hate crime laws would encompass the incident in Soldotna. He
expressed his agreement with Representative Josephson's
understanding that they would not; however, a DOL opinion might
assuage any doubts on the matter.
REPRESENTATIVE JOSEPHSON answered, "That consultation has not
happened." He reiterated that 32 states have adopted similar
measures; 6 or 7 very "red" states protect this class of people.
He asserted that these people are not being protected; they are,
in some cases, viciously assaulted and murdered. The Federal
Bureau of Investigation (FBI) hate crime data supports the fact
that by percent, the LGBT community - more than any other
community - is victimized. He added that using the word
"protection" suggests a special privilege; he pointed out that
it is only a special privilege for those assaulted or murdered
or otherwise victimized by a felony. He said, "It's not a
category to begrudge. It's a category to protect. ... There's
always going to be crime, and if it's a generic - sort of
general crime - we apply a presumptive sentence. But for
decades, starting in the '60s, we said under ... hate crimes,
we're going to enhance sentences if you're bringing a certain
animus, because that animus hurts everyone in the society in a
unique way."
REPRESENTATIVE STORY thanked the representative for introducing
the bill.
3:29:15 PM
REPRESENTATIVE SHAW mentioned that any crime directed toward any
person could be hateful and could be regarded as a hate crime.
He suggested [a crime resulting from] social interactions
between families - a husband kills a wife and a child -
committed out of hate. He asked, "When do we stop adding to the
aggravated factors and not just say a hate crime could very well
be attached to literally any crime in some respect?"
REPRESENTATIVE JOSEPHSON answered, "If you are a six-foot-six
red-haired ... man, you are not going to be targeted because
you're [a] six-foot-six red-haired person." He offered that the
additional category in paragraph (22) evolved because "the facts
are in that in these other groups, you very well might." He
pointed out the irony of Justice Rehnquist - a very conservative
justice - authoring the 1993 decision, which offered protection
for a white person being attacked based on race and enhancing
the sentence for the crime.
CO-CHAIR FIELDS referred to the "six-foot-six red-haired man"
example and pointed out that over 100 years ago Irish people
were not considered white; therefore, if these laws had been in
place at the time, a crime against an Irishman - because he is
Irish - would have been considered a hate crime. Irish people
are now considered white. He suggested that the trend is toward
fewer groups being excluded as different, which is a positive
trend.
[A copy of the note left on the windshield in the Soldotna
incident was passed out to the committee members. It was not
included in the committee packet.]
3:32:59 PM
NATHANIEL GRABMAN, Staff, Representative Andy Josephson, on
behalf of Representative Josephson, prime sponsor of HB 198,
presented a PowerPoint presentation, entitled "HB 198: An Act
Relating to Aggravating Factors Considered at Sentencing." He
began with slide 2, entitled "Aggravating Factors in
Sentencing," which read:
If a defendant is convicted of a crime, they will then
be sentenced. A large number of factors may be
considered during this phase.
AS 12.55.155(c) contains 37 separate factors which, if
proven, shall be considered at sentencing, and allow
for additional sentencing beyond the presumptive range
spelled out in AS 12.55.125.
In conjunction with AS 12.55.125(d), mitigating and
aggravating factors may be considered when a defendant
is sentenced, and may increase or decrease the overall
sentence imposed.
MR. GRABMAN turned to slide 3, entitled "Why Do We Have
Aggravating Factors?" and explained that people recognize that
many of the things they do and say occur in "shades of gray."
He reviewed the information on the slide, which read:
?Motive and details matter.
?As with all laws, these factors reflect societal
attitudes.
?In instances where aggravators are relevant, the
defendant has already been convicted and the details
of the crime are broadly considered abhorrent or
aberrant.
?When a sentence is imposed beyond the presumptive
range, it can be seen as an indication that the motive
was particularly egregious or that the defendant
demonstrated a disregard for societal norms beyond
what might be expected for a 'typical' crime of that
type.
MR. GRABMAN added that society has decided not to condone
certain biased motivated attacks on individuals or groups. He
moved on to slide 4, entitled "HB 198 Amends Aggravator 22,"
which read:
?AS 12.55.125(c)(22) currently allows a sentencing
court to impose additional sentencing if "the
defendant knowingly directed the conduct constituting
the offense at a victim because of that person's race,
sex, color, creed, physical or mental disability,
ancestry, or national origin"
?HB 198 adds "sexual orientation or gender identity"
to this list.
MR. GRABMAN referred to the charts in slide 5, which graphically
represent FBI data from 2015-2018. He stated that the data
shows that biased motivated attacks due to sexual orientation
has been trending upward for the last four years for which data
is available. The data also demonstrates that gender identity
crimes saw a 30 percent spike in the last year of the data.
MR. GRABMAN turned to slide 6, entitled "Alaska is not Immune"
to reference some Alaska headlines about the incident.
REPRESENTATIVE VANCE asked whether the FBI data consisted of
U.S. statistics or Alaska statistics.
MR. GRABMAN replied, "These are U.S. statistics." He referred
to a [Cable News Network (CNN)] video at the end of the slide
show which reports that the statistics are inadequate and
underreported. He added that the numbers on the chart reflect
what has been reported to the FBI.
MR. GRABMAN turned back to slide 6 to point out that the events
that occurred in Soldotna from the time of the note on the
windshield to the time of the resolution of support by the
Soldotna City Council was a matter of months.
MR. GRABMAN moved on to slide 7, entitled "Existing State Laws
Nationwide," to point out that 4-5 states do not have any
aggravators in statute; two-thirds of states have some
protection for these classes.
REPRESENTATIVE JOSEPHSON reminded the committee before watching
the video that the matter [addressed by HB 198] is partially
covered by federal law; however, there is no federal nexus for
the assault of the victim at her home in Sterling.
3:38:10 PM
[A three-minute video, produced by CNN and entitled "Hate Crimes
Statistics Explainer," was played for the committee. The link
to the video was displayed on slide 8, which read:
https://www.cnn.com/videos/us/2019/11/07/hate-crime-statistics-
explainer-orig.cnn].]
3:42:26 PM
KAREN LOEFFLER relayed that she was a 30-year federal prosecutor
and finished her career as a U.S. Attorney [for the District of
Alaska]. She stated that the first line in the protector of
community members against the types of assaults being discussed
is the state. The federal government has civil rights laws, but
they are secondary to state law; they involve situations in
which individuals are attacked because of their status while
they are engaged in federally protected activities; therefore,
the protection is limited. The primary protection against
people based on their status comes from the state.
MS. LOEFFLER continued by saying that it is very common for
judges to consider the motivation of an attacker - both as a
litigator and as an aggravator. She explained that community
consciousness makes attacking someone solely based on status is
abhorrent to society. In Alaska and federally, there were no
special protections for people attacked solely due to gender
identity or sexual orientation. That changed in 2009 with the
[Matthew] Shepard and [James] Byrd [Jr. Hate Crimes Prevention]
Act, which added protection for sexual orientation after the
attack on [Matthew Shepard in Wyoming in 1998].
MS. LOEFFLER relayed that people who choose to attack someone
they do not know based solely on who that person is or on
specific characteristics of the person - and not on the
circumstances of a situation - are more dangerous to society and
its future. She stated that she supports the proposed
legislation because it "fills a hole" that the public became
aware of due to the incident in Soldotna. She added that
statutes such as the one proposed by HB 198 are rarely utilized
but "when this type of thing happens, we need them to be there."
CO-CHAIR FIELDS repeated Representative Vance's question about
having more comprehensive definitions in statute and whether it
would make a difference for prosecuting hate crimes.
MS. LOEFFLER replied that generally terms such as those included
in the proposed legislation are not defined within statute. She
offered that there is a difference between attacking someone
because the person is male or female and attacking the person
because the person is gay.
CO-CHAIR FIELDS stated that HB 198 would be held over.
3:47:43 PM
The committee took an at-ease from 3:48 p.m. to 3:49 p.m.
HB 182-SEXUAL ASSAULT EXAMINATION KITS: TESTING
[Contains discussion of HB 49]
3:48:56 PM
CO-CHAIR FIELDS announced that the final order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 182, "An Act relating
to testing of sexual assault examination kits; and providing for
an effective date."
3:49:22 PM
CO-CHAIR KREISS-TOMKINS moved to adopt the sponsor substitute
(SS) for HB 182, Version 31-LS1188\M, as the working document.
REPRESENTATIVE VANCE objected for discussion purposes.
3:50:04 PM
The committee took a brief at-ease.
[It was determined that adoption of SSHB 182 was not necessary.]
3:50:24 PM
REPRESENTATIVE GERAN TARR, Alaska State Legislature, relayed
that in the fall of 2014, she received a letter from the "End
the Backlog" organization - a project of the Joyful Heart
Foundation. The Joyful Heart Foundation was founded by actress
Mariska Hargitay of the Law & Order: Special Victims Unit
television series in response to the many communications she
received from individuals who were victims of sexual assault.
She started the End The Backlog initiative to end the backlog of
untested rape kits.
REPRESENTATIVE TARR stated that Alaska is making significant
gains on [rape kit testing] reform. She referred to slide 2 of
the PowerPoint, entitled "Joyful Heart Foundation - 6 Pillars,"
which read:
head2right Annual statewide inventory of untested kits: A
recurring count of all untested rape kits enables
stakeholders to understand the scope of the problem
and monitor progress.
head2right Mandatory testing of backlogged kits: Eliminate the
existing backlog by requiring law enforcement agencies
to submit all previously untested kits to the lab and
requiring the kits to be tested.
head2right Mandatory testing of new kits: Prevent future backlogs
by requiring law enforcement agencies to promptly
submit all newly collected kits to the lab, and
requiring the lab to test these kits within a specific
time frame.
head2right Statewide tracking system: Ensure that hospitals, law
enforcement, and labs are using the same system to
track rape kits. Build in a mechanism for survivors to
check the status of their kits throughout the process,
from collection to analysis.
head2right Victims' rights to notice: Grant victims the right to
receive information about the status and location of
their rape kit, and require that victims be informed
if their kit will not be tested and prior to
destruction.
head2right Funding for reform: Appropriate state funding to
address these issues
REPRESENTATIVE TARR stated that Alaska has accomplished almost
everything on the list of reforms and outlined Alaska's progress
as shown on slide 3, entitled "Where are we?" which read:
2014 Launch Rape Kit Reform Initiative
2015 Introduce HB 117, requiring a statewide
audit of all untested rape kits, legislative
hearings lead to request for audit of the
crime lab
2016 Continued working with crime lab staff and
public safety officials on reforms like
instituting a tracking system for all rape
kits
2017 Reforms pass requiring statewide audit of
untested kits (SB 55)
2018 Reforms pass establishing law enforcement
and anonymous reports for victim centered
approach, require law enforcement to have
training on sexual assault response, require
audit on untested kits to be annual (HB 31)
2019 Reforms pass requiring timely testing of
rape kits and victim notification (HB 49)
2020 House Bill 182 to shorten timeline for
testing 60 days or 6 months?
REPRESENTATIVE TARR referred to the document, entitled "Annual
Inventory of Untested SAKs," [included in the committee packet],
that presents the last three years of the statewide audit
numbers. She reviewed the kit tracking process. She added that
Alaska now requires a victim be notified by public safety
officials within two weeks of a rape kit being tested. Some
states offer an online tracking system in which a victim can
track the progress of the rape kit online. Alaska does not yet
have a full tracking system in that regard.
REPRESENTATIVE TARR addressed the issue of the timeline for
testing: When the reform work began, rape kit processing took a
little more than two years. With work on capacity, funding, and
training, the timeline was reduced to about one year. The
current version of SSHB 182 puts the timeline at 60 days as the
best practice for Alaska.
REPRESENTATIVE TARR continued with slide 4, entitled "Why Timing
of Testing is Important," which offered a case study and read:
Mosley is in custody now, but he was allowed to roam
Anchorage freely for more than eight months after
Anchorage police detectives learned his DNA implicated
him in three sexual assaults, and forwarded charges to
the Department of Law.
During that time, a fourth woman was raped.
REPRESENTATIVE TARR relayed the passage on slide 5, entitled
"Lives Changed Forever," which read:
"The effect on the victims cannot be overstated. Some
of these women waited years to find out who their
assailant was. [One woman] moved back to her hometown
out of fear and shame. One of these women, after years
of suffering from infertility despite her best efforts
with her partner, became pregnant as a result of the
rape. The cruel irony of carrying the child of her
rapist after years of trying to have a child with her
partner had a significant impact on her. For each of
these women, they re-live the trauma of the rape and
recently endured having to tell a grand jury what
happened to them."
REPRESENTATIVE TARR offered that the story she just related is
just one of many in Alaska. She emphasized the power of timing
in rape kit testing.
3:56:28 PM
REPRESENTATIVE TARR moved to slide 6, entitled "We MUST do
better." In addressing the fiscal note (FN) for SSHB 182 she
relayed the following: Alaska's Scientific Crime Detection
Laboratory ("crime lab") is a great facility, but it has never
been fully staffed for Alaska to have the in-state capacity to
do all the forensic processing necessary. The crime lab is
processing as much as possible for the whole state, although for
some circumstances, kits must be sent out of state. She stated,
"It's a big uplift to get these highly qualified technical staff
in place." She mentioned that after HB 49 was enacted [calling
for the testing of sexual assault examination kits, signed into
law 7/11/19], it took several months for a position to be
created, several more months for recruitment and hiring, and
another year and a half of training. She complimented the
efforts of the new director of the crime lab, David Kanaris, to
make the crime lab work better. She said that crime lab staff
are doing everything they can; it is a matter of the legislature
providing additional resources so that staff can scale up their
operations to meet any new requirements. She stated that the
goal is 60 days [for the testing of sexual assault examination
kits]; however, the next realistic step is probably 6 months due
to the challenge of filling positions and evolving the system.
Once the 6-month timeline is achieved, staff will be better able
to assess the additional resources necessary to meet 60 days.
She mentioned that the estimates in the FN reflect multiple
phases in the process. She continued by saying that there have
been discussions about strengthening the relationships with
local law enforcement as the capacity of the state crime lab
increases; "better response will just mean improved public
safety for the whole state."
REPRESENTATIVE TARR referred again to the document, entitled
"Annual Inventory of Untested SAKs," to point out the numbers
from the statewide inventory: in 2017, 3,484 sexual assault
kits (SAKs) were inventoried; in 2019, 1,696 SAKs were
inventoried.
4:01:30 PM
[A trailer for the documentary, I am Evidence, was played for
the committee, to demonstrate the consequences of delay in
processing sexual assault kits. The link to the trailer was
displayed on slide 7, which read:
https://www.youtube.com/watch?v=7_b1SbbSu6Y
REPRESENTATIVE TARR relayed that on an annual basis, Alaska
receives about 1,100 kits to be processed, which represents many
lives impacted. It is an issue that impacts everyone in the
state.
4:05:16 PM
DAVID KANARIS, Chief, Scientific Crime Detection Laboratory,
Department of Public Safety (DPS), relayed that he became chief
of the crime lab in July 2019 and is reviewing processes within
the lab. His goal is as follows: to reduce backlog; improve
turn-around times; address retention and recruitment, develop
partnerships with local stakeholders; develop multidisciplinary
teams with the Department of Law (DOL) and law enforcement; and
increase transparency within the system. He said, "I believe
Alaska's public has a right to know what's actually happening
within the crime lab. We don't want us to be a black box." He
stated that ultimately, he wants to make lab data available to
the public on the website.
MR. KANARIS offered that what Alaska has seen regarding sexual
assault mirrors what has occurred nationally; there has been a
large increase in the number of cases being submitted. With the
increased focus on publicity nationally, the sexual assault kit
initiative, and capital appropriations made available within the
state, there has been more focus on sexual assaults. Between
2011 and 2017, according to national crime statistics, there has
been an uptick in violent crime rates in the state as well.
MR. KANARIS continued by saying that when the lab was opened in
2012, about 300 deoxyribonucleic acid (DNA) cases were
submitted; in 2019, 651 cases were submitted; the current year
[2020] has seen a 33 percent increase, which puts the lab on
track for receiving 900 cases for the year. He stated that he
is looking for ways to handle the increase and shorten
processing times, including more personnel, process changes,
changes in the training program, and procedural changes.
REPRESENTATIVE THOMPSON asked for a progress report on the
status of the backlog of untested rape kits.
MR. KANARIS answered that there are three groups of kits. The
2016 federal funds through the sexual assault kit initiative
(SAKI) were used to test only DPS Alaska State Trooper (AST)
kits, which numbered slightly under 600. Testing of those kits
was completed and the funds exhausted. In 2017, the state made
a capital appropriation of $2.75 million to test the rest of the
kits, which numbered 2,500. Of those, 1,219 have been submitted
to a third-party testing company. The third group consists of
the ongoing cases that come in, which is estimated to be 900
this year. Of those, about 60-70 percent represent sexual
assaults, and they will be tested. The current timeline for
testing is about 9 months, which is a significant improvement
over the 2-year testing timeline of 2-3 years ago.
4:10:30 PM
REPRESENTATIVE VANCE thanked the sponsor for her efforts. She
suggested a change to the effective date - currently 7/1/2020 -
to a later date, considering the lab is a couple years from
eliminating the backlog and at the point where it can process
cases as they are received.
REPRESENTATIVE TARR explained that currently 6 months is a
realistic timeframe. It is her desire that the proposed
legislation be amended to require testing to be done within 6
months with the effective date of 7/1/2021. Additional funding
would be required in fiscal year 2021 (FY 21) to create the
positions.
REPRESENTATIVE VANCE asked whether there have been discussions
about expectations and timelines for hiring qualified people for
the crime lab, considering the difficulty recruiting other DPS
employees and the resulting slowdown of timelines on important
public safety matters. She maintained that such a delay would
affect the effective date in meeting the goals of the proposed
legislation.
REPRESENTATIVE TARR replied that initially, 1/1/2021 was
considered, but the date was changed to 7/1/2021 for the very
reason Representative Vance cited - to allow for an appropriate
amount of time to hire and train employees. She referred to Mr.
Kanaris's credentials and tours of the crime lab.
4:14:47 PM
REPRESENTATIVE VANCE asked whether there have been any
prosecutions as a result of kits being processed.
REPRESENTATIVE TARR responded that Mr. Kanaris has some
information on results, but kits are still being processed. She
stated that SAKI evaluated kit testing to establish best
practices, and Mr. Kanaris has stated that if there is not
usable evidence after testing, the lab can quickly notify the
victim.
REPRESENTATIVE THOMPSON also asked about the results of catching
up on kit testing. He asked for the number of cases affected
and the number of identifications.
REPRESENTATIVE TARR answered that because criminal prosecution
is involved, she does not receive that information. She added
that the information is privileged and for the benefit of law
enforcement personnel.
MR. KANARIS stated that of the 568 SAKI cases, 199 had DNA
profiles available. Of those, 57 were enter into the Combined
DNA Index System (CODIS) and got hits in the database; 61 were
"warm" [confirmatory] hits; and 66 were cold hits, that is,
providing completely new information to the law enforcement
agency. He mentioned that one of the cases is now active in
DOL. He said he has less information on the cases funded under
the capital appropriation. Of the 2,568 SAKs, a portion has
been tested, and as of November [2019] about 212 had a profile
that was available to be uploaded into CODIS. He offered that
about one-third of cases have a usable DNA profile. At that
point, it is up to law enforcement to investigate further. He
cited research which stated that the benefit to society of
testing one SAK is $130,000 - an 8,000 percent return on
investment.
4:18:31 PM
REPRESENTATIVE HOPKINS referred to the "Report from End the
Backlog on Alaska," page 2, which read: "No tracking system
exists." He asked for comment on the tracking system.
REPRESENTATIVE TARR responded that at the time House Bill 117
was introduced [during the Twenty-Ninth Alaska State
Legislature, (2015-2016)] there was no system of unique
identifiers for the kits; therefore, it was impossible to know
if the tested kits being sent back to the local police
departments had been used. Subsequently the crime lab changed
its operations internally so that each kit now has a unique
identifier and can be tracked. She added that the capital
budget a couple years ago included not only funds for testing
but funds for high capacity storage shelves; therefore, the
crime lab now can be the central repository for the kits. The
tracking system tracks the location of the kits. A tracking
system to the victim would allow the victim to log in and track
the progress of the kit. She referred to victims being
retraumatized when asked to retell their stories over and over.
Alaska has not fully established victim tracking; however, law
enforcement must notify the individual within two weeks that the
rape kit was tested. Under HB 49, the kit must be sent to the
crime lab within 30 days; it must be tested within one year; and
the victim must be notified within two weeks [of testing]. The
proposed legislation [SSHB 182], if amended, would require the
SAK be tested within 6 months. She emphasized that the
timelines add certainty to the process for the victims.
CO-CHAIR FIELDS referred to the letter [dated 1/31/20 and
included in the committee packet] from Providence Health &
Services Alaska offering support for the proposed legislation.
4:22:23 PM
REPRESENTATIVE THOMPSON referred to the $2.75 million that the
legislature appropriated in 2018 to process the rape kits. He
asked whether all the funds have been expended.
REPRESENTATIVE TARR answered that during the reform process an
industry has developed around rape kit testing because so many
kits were untested and large sums of federal money became
available. She said that of the 2,500 kits to be tested, about
1,290 have been submitted for testing with results back on
1,000. She stated that until all kits have been submitted and
tested, the state won't know the remaining balance in the funds.
The high capacity shelves have been purchased.
MR. KANARIS responded that none of the funding was to be used
for in-state personnel; it was determined that using the funds
to hire and train personnel would result in too many staff for
the ongoing amount of work. The decision was made to outsource
the kits to a third party on the East Coast. The [third party]
agency is halfway through testing the kits, and kits coming into
the lab are being forwarded on to the agency as well. Crime lab
staff is tasked with uploading the profiles into COTIS after
testing is complete.
REPRESENTATIVE THOMPSON asked whether current kits from AST are
being sent to the Lower 48 to be tested, or whether crime lab
personnel are performing the tests on the current kits.
MR. KANARIS answered that cases inventoried under the capital
appropriation - the ones that are stored at local police
departments and have never been submitted to the crime lab - are
being outsourced. Any current kits are being tested within the
state.
REPRESENTATIVE VANCE referred to the FN, [included in the
committee packet], which read: "private forensic science
service provider could meet a 60-day testing window." She asked
for the turnaround time for outsourced kits.
MR. KANARIS answered that it takes 200 days on average for
testing to be completed at the private company.
CO-CHAIR FIELDS asked for confirmation that in summary, Alaska
is expanding its internal capacity while outsourcing some of the
backlog.
MR. KANARIS answered, "Yes, that's absolutely correct."
CO-CHAIR FIELDS stated SSHB 182 would be held over.
4:26:32 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at [4:26]
p.m.