Legislature(1999 - 2000)

03/29/2000 09:30 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 366                                                                                                              
An Act relating to the rights of crime victims, the                                                                             
crime of violating a protective order or injunction,                                                                            
mitigating factors in sentencing for an offense, and                                                                            
the return of certain seized property to victims;                                                                               
expanding the scope of the prohibition of compromise                                                                            
based on civil remedy of misdemeanor crimes involving                                                                           
domestic violence; amending Rules 10, 11, 13, 16, and                                                                           
17, Alaska District Court Rules of Civil Procedure and                                                                          
Rule 9, Alaska Rules of Administration.                                                                                         
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL                                                                            
DIVISION, DEPARTMENT OF LAW, stated that HB 366 deals with                                                                      
victims' rights.  It does not adopt any major changes in the                                                                    
law, but does adopt changes that are important to victims'                                                                      
suffering the circumstances which the bill addresses.  The                                                                      
bill does four things:                                                                                                          
? Allows a mitigated presumptive sentence for speedy no                                                                         
contest or guilty pleas;                                                                                                        
? Simplifies procedures for victims to recover stolen                                                                           
? Establishes a crime for violating protective                                                                                  
injunctions in child in need of aid cases;                                                                                      
? Extends current disallowance of civil compromise in                                                                           
some domestic violence cases to all domestic violence                                                                           
Ms. Carpeneti noted that a court can not issue an injunction                                                                    
for a child in need of aid case unless it makes a finding                                                                       
that the individual has abused the child physically or                                                                          
Representative G. Davis stated that portion concerned him                                                                       
given the "subjective present danger".  Ms. Carpeneti                                                                           
explained that would not be affected in this bill.  Co-Chair                                                                    
Therriault clarified that on Page 2, new language was being                                                                     
added which was a reference to the domestic violence                                                                            
section. Ms. Carpeneti added that was a provision contained                                                                     
in Title 11,which makes it a crime to violate a domestic                                                                        
violence protective order.                                                                                                      
Co-Chair Mulder commented that Section 3 was a different                                                                        
focus from the rest of the bill.  Ms. Carpeneti replied that                                                                    
Section 3 deals with victims of property crimes. It provides                                                                    
a simplified procedure for getting the property back. That                                                                      
section addresses only those cases where the property is in                                                                     
the possession of the law enforcement. The language provides                                                                    
for a simplified procedure.  It would allow the pawnbroker                                                                      
to have their say and due process and the right to present                                                                      
his or her case.                                                                                                                
Co-Chair Mulder asked how the court would make a decision                                                                       
involving the pawnbroker.  Ms. Carpeneti replied that the                                                                       
owner of the property has a higher interest than the                                                                            
pawnbroker.  Co-Chair Therriault interjected that "victims'                                                                     
rights" brings the bill together.                                                                                               
Ms. Carpeneti added that the bill would adopt as a statutory                                                                    
mitigator, if the defendant acted after being charged with a                                                                    
crime, to alleviate the effect of the crime on the victim,                                                                      
by pleading guilty within 30 days of the charges.  The                                                                          
mitigator would have already been recognized by the Court of                                                                    
Appeals as a non-statutory mitigator.  There is a provision                                                                     
in law which allows for civil compromise of certain                                                                             
misdemeanor charges.  Right now, the law allows civil                                                                           
compromise but it does not allow it in about 98% of the                                                                         
domestic violence cases.  The new language would make that                                                                      
Representative G. Davis referenced the "mitigating"                                                                             
stipulation.  He asked if the judge would have the option of                                                                    
reducing the mandatory sentence.  Ms. Carpeneti responded                                                                       
that mitigatory sentencing applies to presumptive                                                                               
sentencing.  That would apply to first time classified                                                                          
felonies, first time unclassified felonies and second time                                                                      
Co-Chair Therriault referenced the Department of Law's,                                                                         
Public Defender fiscal note.  He believed that there would                                                                      
be less work for the mitigator.  Ms. Carpeneti commented                                                                        
that she did not understand the new roll of the mitigator                                                                       
position, which is being requested.  She stated that law                                                                        
currently allows for a civil compromise and admitted that                                                                       
this request would be minor change to current law.  Ms.                                                                         
Carpeneti added that a court would have to approve a civil                                                                      
compromise, regardless.                                                                                                         
Representative J. Davies MOVED to adopt Amendment #1, 1-                                                                        
GH2024\A.1, Luckhaupt, 3/28/00.  [Copy on File].  Co-Chair                                                                      
Mulder OBJECTED.                                                                                                                
Representative J. Davies explained that the Council on                                                                          
Domestic Violence had submitted the amendment.  The                                                                             
amendment speaks to a time when a person commits a crime,                                                                       
violating a protective order. The intent of the amendment                                                                       
would be to relax the requirement that the order needs to be                                                                    
filed.  Given that, if there was a valid protective order                                                                       
issued in another state, it would provide that same standard                                                                    
in Alaska. At this time, filing could be an issue.  The                                                                         
amendment would fit under the order of protecting victims of                                                                    
Co-Chair Mulder asked if this concern had been presented to                                                                     
the Department before this meeting.  Ms. Carpeneti clarified                                                                    
that it had not.  Co-Chair Therriault asked if there was a                                                                      
Department position on the amendment.  Ms. Carpeneti stated                                                                     
that philosophically, it would be a good idea, however, the                                                                     
civil provision of the domestic violence law provides that a                                                                    
protective order from another state has to be filed to be                                                                       
enforced civilly.  By allowing it to be criminal would                                                                          
present an anomaly in law which needs to be fixed.  She                                                                         
noted that the federal government does not require filing of                                                                    
protective orders for them to be enforced.                                                                                      
Representative G. Davis asked if Alaska was more stringent                                                                      
than other states.  Ms. Carpeneti replied that the way the                                                                      
amendment was written, it requires protective orders.  In                                                                       
order for it to be a violation of crime, it would have to                                                                       
come under the statutes.                                                                                                        
(TAPE CHANGE, HFC 00 - 87, Side 2).                                                                                             
Co-Chair Mulder stated that ultimately, the victim would                                                                        
have to have contact with the enforcement agency at some                                                                        
point.  Otherwise, they would have false protection. Ms.                                                                        
Carpeneti commented that a problem could result if someone                                                                      
came to our State and did not know that they had to file a                                                                      
protective order or did not have time to file it before they                                                                    
were victimized.                                                                                                                
Representative Phillips asked why the amendment was not                                                                         
considered when the bill was drafted or discussed in the                                                                        
House Judiciary Committee.                                                                                                      
LAUREE HOGONIN, DIRECTOR, ALASKA NETWORK ON DOMESTIC                                                                            
VIOLENCE AND SEXUAL ASSAULT (ANDVSA), JUNEAU, explained that                                                                    
ANDVSA was not aware that out-of-state orders could not be                                                                      
prosecuted until ten days ago.  This concern came up at a                                                                       
national meeting, as an active piece of law right now,                                                                          
enforcing out-of-state protective orders across the nation.                                                                     
The discussion came up about prosecuting the out-of-state                                                                       
orders.  It had been left out of this area of protective                                                                        
orders issued from other states.  This could happen because                                                                     
the victim was not familiar with the Alaska Statute or                                                                          
because in several other states, filing is not a                                                                                
requirement.  When this came to the attention of the ANDVSA                                                                     
staff, Ms. Hogonin noted that she spoke with Ms. Carpeneti                                                                      
and Representative J. Davies to help fix the problem.                                                                           
Representative Phillips asked if the Alaska orders include a                                                                    
phrase noting that if you transfer out of the state, you                                                                        
must make contact with the public safety officers of the                                                                        
state that you are going to.  Ms. Hogonin replied that does                                                                     
not happen because there are two functions at looking at                                                                        
protective orders with full faith and credit. The issuing                                                                       
state is responsible for determining who is protected, the                                                                      
terms and conditions of the order and how long that order is                                                                    
in effect.  The enforcing state is responsible for how that                                                                     
order is enforced, the arresting authority of responding to                                                                     
it, and the notification and penalty of procedures.  It                                                                         
would not be necessary or practical for the Alaska order to                                                                     
indicate that you have to contact law enforcement or the                                                                        
court in the state you are moving to as that may not be the                                                                     
law for that state which may not require filing.                                                                                
Ms. Carpeneti stated that, AS 18.66.140 would require a                                                                         
change in order to comply with the need.  She acknowledged                                                                      
that the amendment could fit under the content of the                                                                           
proposed bill.                                                                                                                  
Ms. Hogonin stated that there is work being done by two                                                                         
different national groups in the process of developing a                                                                        
model code for enforcement of protective orders, one through                                                                    
the United States Attorney General and the other through the                                                                    
Department of Justice.  She noted that this would be an                                                                         
opportunity for Alaska to include a tool to take care of                                                                        
situations so to have a valid protective order from another                                                                     
state for those victims who either don't know that they are                                                                     
suppose to file or have not had the opportunity to file.  If                                                                    
they had a confrontation, inclusion of this language would                                                                      
allow for a prosecution if they were violated.                                                                                  
Co-Chair Mulder questioned if there should be a fiscal note                                                                     
submitted by Department of Public Safety.                                                                                       
HB 366 was HELD in Committee for further discussion.                                                                            

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