Enrolled SB 222: Relating to the crimes of harassment, distribution and possession of child pornography, failure to register as a sex offender or child kidnapper, and distribution of indecent material to a minor; relating to suspending imposition of sentence and conditions of probation or parole for human trafficking or for certain sex offenses; relating to aggravating factors in sentencing; relating to reporting of crimes; relating to administrative subpoenas for certain records involving exploitation of children; and providing for an effective date.
00Enrolled SB 222 01 Relating to the crimes of harassment, distribution and possession of child pornography, failure 02 to register as a sex offender or child kidnapper, and distribution of indecent material to a 03 minor; relating to suspending imposition of sentence and conditions of probation or parole for 04 human trafficking or for certain sex offenses; relating to aggravating factors in sentencing; 05 relating to reporting of crimes; relating to administrative subpoenas for certain records 06 involving exploitation of children; and providing for an effective date. 07 _______________ 08 * Section 1. AS 11.56.759(a) is amended to read: 09 (a) A person commits the crime of violation by sex offender of condition of 10 probation [OR PAROLE] if the person 11 (1) is on probation [OR PAROLE] for conviction of a sex offense; 12 (2) has served the entire term of incarceration imposed for conviction
01 of the sex offense; and 02 (3) [EITHER 03 (A)] violates a condition of probation imposed under 04 AS 12.55.100(a)(5), (a)(6), or (e), 12.55.101(a)(1), or any other condition 05 imposed by the court that the court finds to be specifically related to the 06 defendant's offense [; OR 07 (B) VIOLATES A CONDITION OF PAROLE IMPOSED 08 UNDER AS 33.16.150(a)(3), (a)(4), (a)(6), (a)(13), (b)(4), (b)(11), OR (f)]. 09 * Sec. 2. AS 11.56.759(c) is amended to read: 10 (c) Violation by sex offender of condition of probation [OR PAROLE] is a 11 class A misdemeanor. 12 * Sec. 3. AS 11.56.840 is repealed and reenacted to read: 13 Sec. 11.56.840. Failure to register as a sex offender or child kidnapper in 14 the second degree. (a) A person commits the crime of failure to register as a sex 15 offender or child kidnapper in the second degree if the person 16 (1) is required to register under AS 12.63.010; 17 (2) knows that the person is required to register under AS 12.63.010; 18 and 19 (3) fails to 20 (A) register; 21 (B) file written notice of 22 (i) change of residence; 23 (ii) change of mailing address; 24 (iii) establishment of an electronic or messaging address 25 or any change to an electronic or messaging address; or 26 (iv) establishment of an Internet communication 27 identifier or any change to an Internet communication identifier; 28 (C) file the annual or quarterly written verification; or 29 (D) supply accurate and complete information required to be 30 submitted under this paragraph. 31 (b) In a prosecution for failure to register as a sex offender or child kidnapper
01 in the second degree under (a) of this section, it is an affirmative defense that 02 (1) unforeseeable circumstances, outside the control of the person, 03 prevented the person from registering under (a)(3)(A) of this section or filing or 04 supplying the written notices, verification, and other information required under 05 (a)(3)(B) - (D) of this section; and 06 (2) the person contacted the Department of Public Safety orally and in 07 writing immediately upon being able to perform the requirements described in this 08 section. 09 (c) Failure to register as a sex offender or child kidnapper in the second degree 10 is a class A misdemeanor. 11 * Sec. 4. AS 11.61.118(a) is amended to read: 12 (a) A person commits the crime of harassment in the first degree if 13 (1) the person violates AS 11.61.120(a)(5) and the offensive physical 14 contact is contact with human or animal blood, mucus, saliva, semen, urine, vomitus, 15 or feces; or 16 (2) under circumstances not proscribed under AS 11.41.434 - 17 11.41.440, the person violates AS 11.61.120(a)(5) and the offensive physical 18 contact is contact by the person touching through clothing another person's 19 genitals, buttocks, or female breast. 20 * Sec. 5. AS 11.61.125(a) is amended to read: 21 (a) A person commits the crime of distribution of child pornography if the 22 person distributes in this state or advertises, promotes, solicits, or offers to 23 distribute in this state [BRINGS OR CAUSES TO BE BROUGHT INTO THE 24 STATE FOR DISTRIBUTION, OR IN THE STATE DISTRIBUTES, OR IN THE 25 STATE POSSESSES, PREPARES, PUBLISHES, OR PRINTS WITH INTENT TO 26 DISTRIBUTE,] any material that is proscribed under AS 11.61.127 [VISUALLY 27 OR AURALLY DEPICTS CONDUCT DESCRIBED IN AS 11.41.455(a), 28 KNOWING THAT THE PRODUCTION OF THE MATERIAL INVOLVED THE 29 USE OF A CHILD UNDER 18 YEARS OF AGE WHO ENGAGED IN THE 30 CONDUCT]. 31 * Sec. 6. AS 11.61.127(a) is amended to read:
01 (a) A person commits the crime of possession of child pornography if the 02 person knowingly possesses or knowingly accesses on a computer with intent to 03 view any material that visually [OR AURALLY] depicts conduct described in 04 AS 11.41.455(a) knowing that the production of the material involved the use of a 05 child under 18 years of age who engaged in the conduct or a depiction of a part of an 06 actual child under 18 years of age who, by manipulation, creation, or 07 modification, appears to be engaged in the conduct. 08 * Sec. 7. AS 11.61.127(c) is amended to read: 09 (c) Each film, audio, video, electronic, or electromagnetic recording, 10 photograph, negative, slide, book, newspaper, magazine, or other material that visually 11 or aurally depicts conduct described in AS 11.41.455(a) that is possessed or accessed 12 in violation of (a) of this section [BY A PERSON KNOWING THAT THE 13 PRODUCTION OF THE MATERIAL INVOLVED THE USE OF A CHILD 14 UNDER 18 YEARS OF AGE THAT ENGAGED IN THE CONDUCT] is a separate 15 violation of this section. 16 * Sec. 8. AS 11.61.127 is amended by adding new subsections to read: 17 (e) In a prosecution under (a) of this section, it is an affirmative defense that 18 the person 19 (1) possessed or accessed fewer than three depictions described in (a) 20 of this section; and 21 (2) without allowing any person other than a law enforcement agency 22 to view the depictions, either took reasonable steps to destroy the depictions, or 23 reported the matter to a law enforcement agency and allowed the agency access to the 24 depictions. 25 (f) In this section, "computer" has the meaning given in AS 11.46.990. 26 (g) In a prosecution under (a) of this section, the prosecution is not required to 27 prove the identity of a minor depicted or that the defendant knew the identity of a 28 minor depicted. 29 * Sec. 9. AS 11.61.128(a) is amended to read: 30 (a) A person commits the crime of [ELECTRONIC] distribution of indecent 31 material to minors if
01 (1) the person, being 18 years of age or older, knowingly distributes to 02 another person [BY COMPUTER] any material that depicts the following actual or 03 simulated conduct: 04 (A) sexual penetration; 05 (B) the lewd touching of a person's genitals, anus, or female 06 breast; 07 (C) masturbation; 08 (D) bestiality; 09 (E) the lewd exhibition of a person's genitals, anus, or female 10 breast; or 11 (F) sexual masochism or sadism; [AND] 12 (2) the material is harmful to minors; and 13 (3) either 14 (A) the other person is a child under 16 years of age; or 15 (B) the person believes that the other person is a child under 16 16 years of age. 17 * Sec. 10. AS 11.61.128(c) is amended to read: 18 (c) Except as provided in (d) of this section, [ELECTRONIC] distribution of 19 indecent material to minors is a class C felony. 20 * Sec. 11. AS 11.61.128(d) is amended to read: 21 (d) Distribution [ELECTRONIC DISTRIBUTION] of indecent material to 22 minors is a class B felony if the defendant was, at the time of the offense, required to 23 register as a sex offender or child kidnapper under AS 12.63 or a similar law of 24 another jurisdiction. 25 * Sec. 12. AS 11.61.128 is amended by adding a new subsection to read: 26 (e) In this section, "harmful to minors" means 27 (1) the average individual, applying contemporary community 28 standards, would find that the material, taken as a whole, appeals to the prurient 29 interest in sex for persons under 16 years of age; 30 (2) a reasonable person would find that the material, taken as a whole, 31 lacks serious literary, artistic, educational, political, or scientific value for persons
01 under 16 years of age; and 02 (3) the material depicts actual or simulated conduct in a way that is 03 patently offensive to the prevailing standards in the adult community as a whole with 04 respect to what is suitable for persons under 16 years of age. 05 * Sec. 13. AS 12.55.085(f) is amended to read: 06 (f) The court may not suspend the imposition of sentence of a person who 07 (1) is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260 08 - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, [OR] AS 11.46.400, or 09 AS 11.61.125 - 11.61.128; 10 (2) uses a firearm in the commission of the offense for which the 11 person is convicted; or 12 (3) is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony 13 and the person has one or more prior convictions for a misdemeanor violation of 14 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 15 having [SUBSTANTIALLY] similar elements to an offense defined as a misdemeanor 16 in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person 17 shall be considered to have a prior conviction even if that conviction has been set aside 18 under (e) of this section or under the equivalent provision of the laws of another 19 jurisdiction. 20 * Sec. 14. AS 12.55.100(e) is repealed and reenacted to read: 21 (e) In addition to other conditions imposed on the defendant, while on 22 probation and as a condition of probation 23 (1) for a sex offense, as described in AS 12.63.100, the defendant 24 (A) shall be required to submit to regular periodic polygraph 25 examinations; 26 (B) may be required to provide each electronic mail address, 27 instant messaging address, and other Internet communication identifier that the 28 defendant uses to the defendant's probation officer; the probation officer shall 29 forward those addresses and identifiers to the Alaska state troopers and to the 30 local law enforcement agency; 31 (2) if the defendant was convicted of a violation of AS 11.41.434 -
01 11.41.455, AS 11.61.125 - 11.61.128, or a similar offense in another jurisdiction, the 02 defendant may be required to refrain from 03 (A) using or creating an Internet site; 04 (B) communicating with children under 16 years of age; or 05 (C) possessing or using a computer. 06 * Sec. 15. AS 12.55.155(c)(5) is amended to read: 07 (5) the defendant knew or reasonably should have known that the 08 victim of the offense was particularly vulnerable or incapable of resistance due to 09 advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, 10 or extreme youth or was for any other reason substantially incapable of exercising 11 normal physical or mental powers of resistance; 12 * Sec. 16. AS 12.55.155(c)(18) is amended to read: 13 (18) the offense was a felony 14 (A) specified in AS 11.41 and was committed against a spouse, 15 a former spouse, or a member of the social unit made up of those living 16 together in the same dwelling as the defendant; 17 (B) specified in AS 11.41.410 - 11.41.458 and the defendant 18 has engaged in the same or other conduct prohibited by a provision of 19 AS 11.41.410 - 11.41.460 involving the same or another victim; [OR] 20 (C) specified in AS 11.41 that is a crime involving domestic 21 violence and was committed in the physical presence or hearing of a child 22 under 16 years of age who was, at the time of the offense, living within the 23 residence of the victim, the residence of the perpetrator, or the residence where 24 the crime involving domestic violence occurred; 25 (D) specified in AS 11.41 and was committed against a 26 person with whom the defendant has a dating relationship or with whom 27 the defendant has engaged in a sexual relationship; or 28 (E) specified in AS 11.41.434 - 11.41.458 or AS 11.61.128 29 and the defendant was 10 or more years older than the victim; 30 * Sec. 17. AS 12.62.130 is amended to read: 31 Sec. 12.62.130. Reporting of uniform crime information. A criminal justice
01 agency shall submit to the department, at the time, in the manner, and in the form 02 specified by the department, data regarding crimes committed within that agency's 03 jurisdiction. At a minimum, the department shall require a criminal justice 04 agency to report each felony sex offense committed in the agency's jurisdiction. 05 The department may withhold grant funding to a criminal justice agency that 06 fails to report data as required by this section. The department shall compile, and 07 provide to the governor and the attorney general, an annual report concerning the 08 number and nature of criminal offenses committed, the disposition of the offenses, and 09 any other data the commissioner finds appropriate relating to the method, frequency, 10 cause, and prevention of crime. In this section, "sex offense" has the meaning given 11 in AS 12.63.100. 12 * Sec. 18. AS 12.63.100(6) is amended to read: 13 (6) "sex offense" means 14 (A) a crime under AS 11.41.100(a)(3), or a similar law of 15 another jurisdiction, in which the person committed or attempted to commit a 16 sexual offense, or a similar offense under the laws of the other jurisdiction; in 17 this subparagraph, "sexual offense" has the meaning given in 18 AS 11.41.100(a)(3); 19 (B) a crime under AS 11.41.110(a)(3), or a similar law of 20 another jurisdiction, in which the person committed or attempted to commit 21 one of the following crimes, or a similar law of another jurisdiction: 22 (i) sexual assault in the first degree; 23 (ii) sexual assault in the second degree; 24 (iii) sexual abuse of a minor in the first degree; or 25 (iv) sexual abuse of a minor in the second degree; or 26 (C) a crime, or an attempt, solicitation, or conspiracy to commit 27 a crime, under the following statutes or a similar law of another jurisdiction: 28 (i) AS 11.41.410 - 11.41.438; 29 (ii) AS 11.41.440(a)(2); 30 (iii) AS 11.41.450 - 11.41.458; 31 (iv) AS 11.41.460 if the indecent exposure is before a
01 person under 16 years of age and the offender has a previous conviction 02 for that offense; 03 (v) AS 11.61.125 - 11.61.128; 04 (vi) AS 11.66.110 or 11.66.130(a)(2) if the person who 05 was induced or caused to engage in prostitution was 16 or 17 years of 06 age at the time of the offense; [OR] 07 (vii) former AS 11.15.120, former 11.15.134, or assault 08 with the intent to commit rape under former AS 11.15.160, former 09 AS 11.40.110, or former 11.40.200; or 10 (viii) AS 11.61.118(a)(2) if the offender has a 11 previous conviction for that offense; 12 * Sec. 19. AS 44.23 is amended by adding a new section to read: 13 Sec. 44.23.080. Subpoena power of attorney general in cases involving use 14 of an Internet service account in the exploitation of children. (a) In an 15 investigation of an offense under AS 11.41.452, 11.41.455, or AS 11.61.125 - 16 11.61.128 and on reasonable cause to believe that an Internet service account has been 17 used in the exploitation or attempted exploitation of children, the attorney general may 18 issue in writing and cause to be served a subpoena requiring the production and 19 testimony described in (b) of this section. 20 (b) A person receiving a subpoena under (a) of this section shall disclose, for 21 the account that is the subject of the subpoena, 22 (1) the name of the person holding the account; 23 (2) the address and physical location associated with the account; and 24 (3) length of service, including service start date, and types of service 25 used by the account. 26 cAt any time before the return date specified on the subpoena, the subpoenaed 27 person may petition a court of competent jurisdiction for the judicial district in which the 28 person resides or does business for an order modifying or setting aside the subpoena or for 29 an order sealing the court record. 30 (d) A subpoena under this section must describe the objects required to be 31 produced and must prescribe a return date with a reasonable period of time within which
01 the objects must be assembled and produced. 02 (e) If no case or proceeding arises from the production of records or other 03 documents under this section within a reasonable time after those records or documents 04 are produced, the attorney general shall either destroy the records and documents or return 05 them to the person who produced them. 06 (f) A subpoena issued under this section may be served as provided for service of 07 subpoenas under Rule 45, Alaska Rules of Civil Procedure, or for service of process under 08 Rule 4, Alaska Rules of Civil Procedure. 09 (g) Except as provided in this section, any information, records, or data reported 10 or obtained under a subpoena under this section shall remain confidential and may not be 11 disclosed unless the disclosure occurs in connection with a criminal case related to the 12 subpoenaed materials. 13 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 LEGISLATIVE STATEMENT CONCERNING CULPABLE MENTAL STATE. In 16 AS 11.56.840(a), as repealed and reenacted by sec. 3 of this Act, the only culpable mental 17 state required to be proven by the prosecution is the "knowing" requirement in paragraph (2) 18 of that subsection. No other culpable mental state needs to be proven for the other elements of 19 that offense. 20 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 21 read: 22 APPLICABILITY. (a) Sections 1 - 16 and 18 of this Act apply to offenses committed 23 on or after the effective date of this Act. 24 (b) Section 19 of this Act applies to offenses committed before, on, or after the 25 effective date of this Act. 26 * Sec. 22. This Act takes effect July 1, 2010.