Legislature(2003 - 2004)
02/23/2004 01:34 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 334 - UNLAWFUL EXPLOITATION OF MINOR Number 0072 CHAIR McGUIRE announced that the first order of business would be, HOUSE BILL NO. 334, "An Act relating to unlawful exploitation of a minor." Number 0110 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor, explained that HB 334 simply changes the crime of unlawful exploitation of a minor from a class B felony to a class A felony, adding that he feels it is his duty to convince the House Judiciary Standing Committee that this is a necessary change. For the purpose of disclosure, he relayed that he is the father of two daughters and has served on the board of directors of Standing Together Against Rape (STAR) for three years. REPRESENTATIVE MEYER went on to say that he believes that explicit sexual material involving children is a very serious crime, and has multiple effects on a child as he/she grows up on into his/her adulthood. It can affect a child psychologically, sociologically, and behaviorally. Another problem with the production of child pornography is that even if the child is able to mature and forget his/her past, there's still a videotape and/or pictures out there, of this act, for as long as that videotape and/or pictures exist. The production of child pornography also puts the child in some very, very dangerous situations, exposing him/her to sexually transmitted diseases, rape, assault, and torture. REPRESENTATIVE MEYER noted that there have been several cases in Anchorage involving the production of child pornography, and opined that it is more common than people want to believe. One of the reasons for this, he offered, is that such crimes often involve other crimes as well, and so the focus is directed towards those other crimes. He said he believes that the crime of exploitation of a minor needs to be raised to a class A felony because those sentenced for a class B felony can get by with a one- to four-year sentence. He pointed out that the Department of Corrections has provided the committee with statistical handouts regarding this particular crime; one offender of this crime is serving two years. With "good behavior," he remarked, that offender will be out of jail in less than one year. Number 0362 REPRESENTATIVE MEYER offered his understanding that the difference between the crime of sexual abuse of a minor and that of exploitation of a minor is that in cases of sexual abuse of a minor, the perpetrator forces himself/herself onto the minor - in essence, rape - and in cases of exploitation of a minor, the perpetrator is asking a child or children to perform sexual acts for the purpose of videotaping those acts or taking pictures of those acts. What he is proposing, he relayed, is a [sentencing] scheme wherein the crime of sexual abuse of a minor [in the first degree] would remain an unclassified felony, the crime of exploitation of a minor would become a class A felony, the crime of distribution of child pornography would remain a class B felony, and the crime of possession of child pornography would remain a class C felony. REPRESENTATIVE MEYER said he believes that the actual production of child pornography is worse than the selling of it. Although both are very bad, if it is not first produced, then there is nothing to sell. He noted that under federal law, the production of child pornography carries with it a minimum sentence of [ten] years, and that under HB 334, the sentence would be five years. Why not just rely on the federal law? The reason is because federal law applies only in instances wherein an interstate crime has occurred. In conclusion, he turned members' attention to the accompanying fiscal notes. REPRESENTATIVE SAMUELS noted that the crime of manslaughter is currently a class A felony, the same as what is being proposed for the production of child pornography. He asked whether the crime of exploitation of a minor involves anything other than the production of child pornography. REPRESENTATIVE MEYER offered his belief that that's basically all it involves. If, during the course of producing the child pornography, the adult was sexually assaulting the child, then the offender would face that charge as well. CHAIR McGUIRE asked whether, for example, if a 14-year old and a 16-year old are in a consensual relationship and one of them takes a picture of the other, that would be considered unlawful exploitation of a minor. REPRESENTATIVE MEYER offered his belief that it would not be, so long as it was a consensual relationship. He added that the minor has to be enticed in some way to perform these activities for it to be considered unlawful exploitation of a minor. Number 0812 PATTY WARE, Director, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), said that although the DJJ strongly supports accountability with respect to offenders, it is opposed to the expansion of the automatic waiver provision, which would be one of the impacts of HB 334. She elaborated: It would result in expansion of the "auto-waiver" provision currently contained in the delinquency statutes, in [AS] 47.12.030, such that if a juvenile is 16 or older, and this were to be class A felony, he or she would be waived into the adult system. We've prepared a brief summary sheet for the committee ... [and], as you can see, we don't get very many of these types of cases within the department. For the 10-year period from [fiscal year 1994] FY 94 through current to date FY 04, we had 15 juveniles charged with unlawful exploitation of a minor in that ten-year period, representing eight separate incidents. As you can see, ... those cases that were referred with other charges ultimately resulted in an adjudication 100 percent of the time. I should note that in some of those instances, the adjudication was done at a later time for a charge that was subsequently referred. Were this bill to have been law, then in that 10-year period, 7 out of the total 15 juveniles referred to the [DJJ], or 47 percent of the total referrals, would have been waived to the adult system because they were 16 years or older at the time of the alleged offense. Again, the [DHSS] strongly supports accountability for all of those folks who commit offenses, but we believe strongly [that] we can address the issue of offender accountability more appropriately in the juvenile justice system [JJS] rather than having these juveniles waived to the adult setting. I'd be happy to answer any questions. CHAIR McGUIRE asked Ms. Ware for suggestions on how to achieve the sponsor's goal regarding adults without expanding the automatic waiver provision in AS 47.12. MS. WARE said that one option would be to propose an amendment such that this particular charge is exempted from AS 47.12.030; this would ensure that the current automatic waiver provision would not be expanded. REPRESENTATIVE OGG turned attention back to Chair McGuire's example and asked Ms. Ware to comment. Number 0999 MS. WARE said that according to her understanding, the behavior in that type of example would fall under the purview of the bill. Part of the difficulty within the DJJ is that such behavior is what is most often seen; in other words, the juveniles are very close in age and, although the behavior is illegal and inappropriate, it is consensual, and so the DJJ has a difficult time proving the case because the identified victim won't testify. In response to a question, she repeated her suggested amendment, adding that such an amendment would make the crime of exploitation of a minor a class A felony for adults without expanding the automatic waiver provision in AS 47.12.030. CHAIR McGUIRE mentioned that committee staff would be working on such an amendment, and noted that the committee has recently been looking at the issue of benefits versus responsibilities for young adults. REPRESENTATIVE GRUENBERG remarked that in a juvenile setting, under the current statutory language, the defendant would still be guilty of the crime even if he/she is younger than the alleged victim. He also noted that there could be circumstances wherein one person is one day under the age of 18 while the other person is one day over the age of 18. A class A felony would be pretty steep for those in such a situation, he opined. REPRESENTATIVE SAMUELS pointed out, however, that there could be situations in which someone under the age of 18 is running, or is an integral part of, an operation that produces child pornography. He surmised that Ms. Ware's suggested amendment would still allow for a waiver into adult court on a case-by- case basis. MS. WARE remarked that current statute already allows that. She added, "It doesn't have to be in the "auto waiver" provision; if we think a juvenile offense is serious enough, then we can petition the court to have the juvenile [waived into adult court]." In response to questions, she noted that the current discretionary waiver provisions, which are located in AS 47.12.100, do not specify particular offenses, and offered that her suggested amendment would maintain the status quo with regard to discretionary waivers. "When a juvenile comes before the department, ... we make a decision that is in the best interest of the community as well as making sure that the offender is held accountable," she added. CHAIR McGUIRE indicated a preference for relying on the current discretionary waiver provision, rather than expanding the automatic waiver provision. MS. WARE, in response to a question, said, "The [DHSS] does not see any problem with the statute as it currently exists in terms of its impact on the juveniles ... who are alleged to have committed this crime." Number 1468 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), said that although at first glance HB 334 appears to be simple, upon further review of the proposed change, it is not so simple. She referred to AS 11.81.250, which, she remarked, looks at the big picture, and said: Our state carefully crafted a classification scheme for offenses, and that statute lays out the degree of harm and the nature of offenses and why they are in certain classifications. Of course unclassified is for the worst. Class A is for offenses where it involves conduct resulting in serious physical injury, or substantial risk of serious physical injury, to a person. ... I think that [it] would be helpful for the committee to hear what kinds of offenses are class A felonies. [The] typical ones ... [would] be manslaughter; assault in the first degree where somebody suffers serious physical injury from a dangerous instrument; attempted sexual assault in the first degree; attempted [sexual] abuse of a minor in the first degree; robbery in the first degree; arson in the first degree; [and] misconduct involving weapons in the first degree. That's just sort of an example of some of the crimes that we as a criminal justice system look to for that level of offense: serious physical injury resulting. Now, a class B felony, there's quite a few of them, and the typical class B felony is for conduct that results in less severe violence against a person than a class A felony but still aggravated offenses against the public administration and order or property interests. So some typical [class] B felonies would be criminal negligent homicide; assault in the second degree; sexual assault in the second degree; [sexual] abuse of a minor in the second degree; this offense as it is now, unlawful exploitation of a minor, but also some similar offenses that run with this are distribution of child pornography. That's a class B felony. Number 1599 MS. WILSON continued: Endangering the welfare of a child in the first degree is a class B felony. Robbery in the second degree; burglary in the first degree; arson in the second degree; terroristic threatening in the first degree; misconduct involving weapons in the second degree; and there's probably about 15 more [class] B felony offenses. So as you see from the listing, ... when you specifically pull out one offense and put it in a higher one, you mess with the whole system. And the question is, do you really want to do that? MS. WILSON referred to Ms. Ware's comments regarding automatic waivers, and read portions of AS 11.41.455 to illustrate the kinds of conduct it includes. She pointed out that for sentencing purposes, a class A felony is significantly more serious than a class B felony; for a class B felony, "you have a range of zero to ten years, you have presumptive four years if they're a second [time] offender." This means that generally speaking, somewhere between one and four years will be the sentence for a first offense, although if it is a serious case, aggravators can be considered in order to raise the sentence. In contrast, a class A felony carries with it a presumptive sentence of five years; "that's where you start ... and you can go up to twenty years." So a class A felony has much more serious consequences. In the case of two consenting 17-year- olds, while having sex might not be a crime, taking a picture in that situation would be, and thus making it a class A felony, which brings with it a presumptive sentence of five years, certainly seems harsh, she remarked, "and it pulls this out of this carefully crafted classification scheme. MS. WILSON noted that distribution of child pornography is a class B felony, but taking a picture will become a class A felony under HB 334. In addition, associated with the offense of exploitation of a minor are other crimes that can already be prosecuted; for example, sexual abuse of a minor in the first degree is an unclassified felony. In addition, sexual abuse of minor in the second degree is a class B felony, and involve actions that are as serious as the actions that HB 334 would bump up to a class A felony. She offered that if the committee really wants to target the older predator or pedophile who is engaging in this type of activity with younger victims, then perhaps altering the sexual abuse of a minor statutes might be a better way to elevate the crime under more limited circumstances. Number 1798 MS. WILSON said that the PDA's experience is that not many such cases are prosecuted, and surmised that this tends to reflect the DJJ's comments regarding younger offenders. But there are not many such cases involving older offenders either, and most of those cases involve consensual situations in which someone simply took a picture of someone else and one of them is just over 18 years old and the other is just under 18 years old. She pointed out that even if the committee were to create an exception to the automatic waiver provision, the bill is still "in the troubling world of [a class] A felony," adding that she does not think that "this is as big of a problem [such] that we need to pull this particular offense out." MS. WILSON went on to say, "I am certainly not trying to minimize the seriousness of this offense; certainly, it is a serious offense and, ... many times, there are other offenses that are prosecuted [at] the same level or worse for behavior that sort of surrounds this." She also pointed out that there are other statutory provisions that reference AS 11.41.455: AS 11.51.100, endangering the welfare of a child in the first degree; AS 11.41.436, sexual abuse of a minor in the second degree; and AS 11.61, distribution of child pornography. These examples are all class B felonies. In conclusion, she said that all of these statutes are intertwined and crafted so that the levels of offenses fit within what was studied for a very long time as to what level an offense should be, adding that to pull "this one out" would be a mistake. Number 1923 CHAIR McGUIRE appointed Representatives Samuels, Anderson, and Gruenberg - with Representative Samuels as the chair - to a subcommittee on HB 334. The subjects the subcommittee will address are the exclusion of the automatic waiver and how raising the crime to a class A felony will mesh with other existing statutes. REPRESENTATIVE GRUENBERG said he would strongly support making it a serious crime to commercially and repeatedly engage in the behavior listed in AS 11.41.455, and suggested that one way of going about it would be to alter AS 11.61.125 - distribution of child pornography - such that a second offense would be a class A felony. CHAIR McGUIRE posited that all on the committee understand the kind of conduct the sponsor is attempting to address, and said she hoped that the sponsor would work with the subcommittee to address everyone's concerns. REPRESENTATIVE MEYER agreed, adding that it is not his intention to go after the 17-year-olds who might be taking pictures of each other while engaging in consensual sex. He remarked that he does not have a problem with Ms. Ware's suggested change, adding that he is comforted by the fact that even with such an amendment, a juvenile could be waived into adult court if the situation warranted it. He offered his belief that a victim of this crime must be enticed before even a class B felony can be charged; therefore, those engaging in consensual sex would not be affected by HB 334. He referred to handouts provided by the Department of Corrections (DOC) and said he did not think that youthful offenders are the problem. REPRESENTATIVE MEYER opined that creating child pornography does correlate with other crimes that are class A felonies, whereas some class B felonies don't involve very serious crimes in comparison to creating child pornography. He offered his belief that in comparison to federal law, which carries a presumptive sentence of ten years, current Alaska law is way behind, adding that he feels it is appropriate to make the crime of exploitation of a minor a class A felony because the sale of child pornography, which is currently a class B felony, is not, in his opinion, as bad as the production of it. Number 2132 REPRESENTATIVE GARA pointed out, however, that although HB 334 addresses a very serious class of crime, the term enticing can apply to behavior that is consensual. For example, in a situation involving two 17-year-olds, one of them could say, "Come on, I'd like to take your picture," and the other could say no at first but then change his/her mind due to enticement by the person asking. Therefore, enticement can be completely consensual, he surmised. He went on to say that he is not interested in changing the current law on this issue until he is convinced that the application of the current law has been resulting in injustice. REPRESENTATIVE MEYER noted that in his opening remarks he'd made reference to a perpetrator who is serving a two-year sentence for the crime of exploitation of a minor and who could potentially be out of jail in one year. And because the sentence for a class B felony could be as low as one year, a person being charged with the crime of exploitation of a minor might only have to serve six months or less. "In my mind, what you're doing to that minor by producing that child pornography is long-lasting and there's always going to be a video or a picture to remind that person of that [situation]; so, no, I don't think the sentencing is proper at current," he added. In response to a question, he relayed that he would provide the committee with the facts of that case. MS. WILSON, in response to questions regarding the current sentencing scheme, said that a class B felony has a range of zero to ten years and that first offenders generally get between zero and four years. Those offenders with a prior conviction face a presumptive sentence of four years. For a class A felony, the sentencing range starts out with a presumptive sentence of five years even for first time offenders, with the maximum sentence being twenty years if, for example, there were aggravators. For a class A felony, someone with a prior felony conviction could get a presumptive sentence of ten years, and someone with two prior felony convictions could get a presumptive sentence of fifteen years for a third felony offense. MS. WILSON added that if one were to be convicted of a class B felony for this crime under current statute, the facts of the case could warrant mitigators or aggravators, and there are approximately 30 or 31 aggravators. For example, one aggravator would involve using a dangerous instrument during the crime. So even if an offender was not facing a presumptive sentence, the courts can currently look at the facts of the case and consider aggravators for the purpose of increasing an offender's sentence. She offered that in instances where the offender uses drugs or alcohol to incapacitate a victim, that might qualify for an additional charge of sexual abuse of a minor in the second degree or of sexual assault. TAPE 04-21, SIDE B Number 2393 MS. WILSON, in response to further questions, said that in such a situation, the offender could be charged with separate counts and the sentences could be consecutive. Judges currently have discretion over whether sentences run consecutively, though there are some sexual offenses that have to run consecutively. CHAIR McGUIRE announced that HB 334 would be held over for the purpose of allowing the subcommittee to work on the issues raised.