Legislature(2003 - 2004)

02/23/2004 01:34 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
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                                                               
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                                                               
     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                                                                    
     [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                                                                    
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                                                               
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                                                               
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                                                               

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