Legislature(2003 - 2004)
03/16/2004 01:10 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 1615 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 334, "An Act relating to unlawful exploitation of a minor." Number 1671 REPRESENTATIVE SAMUELS, as chair of the subcommittee on HB 334, informed the committee that the subcommittee attempted to craft a way to separate the age distinction so that there would be a three-year separation in age. However, that proved to be problematic. Therefore, the subcommittee decided to exempt this particular crime from the automatic waiver portion of the statute. There was also discussion of Representative Gruenberg's idea to make a second offense of distribution of child pornography a class A felony. CHAIR McGUIRE noted that the committee packet should contain the subcommittee report from Representative Meyer dated March 4. Number 1746 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor, thanked subcommittee members for their work, and relayed that [stopping] the making of child pornography is a top priority. He characterized [the product of the subcommittee] as a good solution - a stair-step approach - to juvenile sexual exploitation. He highlighted that sexual assault of a minor would be an unclassified felony, sexual exploitation of a minor would be a class A felony, a distribution offense would be a class B felony - unless it's a second offense, and then it would be a class A felony - and the actual possession [of child pornography] would be a class C felony. Representative Meyer mentioned discussions with Standing Together Against Rape (STAR) and others who work in this area of the law that have relayed that Alaska's laws are significantly less than those at the federal level. The thought is that by increasing the penalties, more federal funds could be obtained. Number 1890 REPRESENTATIVE GRUENBERG moved to adopt the proposed committee substitute (CS) for HB 334, Version 23-LS1246\H, Luckhaupt, 3/3/04, as the work draft. There being no objection, Version H was before the committee. REPRESENTATIVE GRUENBERG said that he didn't have a problem with Version H, save Section 1. He posed a situation in which an 18- year-old takes a photograph of a younger friend, and commented that he didn't want that 18-year-old to face a class A felony charge. He opined that such wouldn't be fair. He then turned attention to the text of AS 11.41.436(a)(4), and noted that the subcommittee report says that [an age distinction] is inconsistent with [AS 11.41.436(a)(4)]. Therefore, Representative Gruenberg suggested that if the intent is to make something a class A felony in Section 1 of the legislation, perhaps there should be a conforming amendment to [the provision] dealing with sexual abuse of a minor. He recommended saying "something similar to being 18 years of age or older and to say if you're three years older than that, then that would be a class A also so that they would be consistent." He reiterated his concern with making a class A felon of an 18 year old who takes a photograph of his or her girlfriend or boyfriend who is a month younger. He said that he couldn't support that. REPRESENTATIVE SAMUELS pointed out, however, that the state would have to more forward in such a case; that is, someone from the Department of Law would have to make a conscious decision to move forward with the case and implement the statute. He said he didn't know if the desire is to cover every contingency covered for age discrepancies or if there is the desire to provide the district attorney's office [discretion in this area]. Number 2086 REPRESENTATIVE GARA said he couldn't believe that [the committee] would pass a criminal statute that includes the possible conviction of people that are not intended to be convicted, and do so merely on the belief that the prosecution might exercise the discretion not to convict those people appropriately. He emphasized the need to ensure that when criminal legislation is passed, it is as narrow as possible. He further emphasized that he isn't willing to give the government the ability to convict those [that the legislature] didn't intend to be convicted. Therefore, he said he stood with Representative Gruenberg on this matter. CHAIR McGUIRE remarked that the difficulty arises because there are all kinds of mediums, including photography, that can be used to produce child pornography. She pointed out that the statute is fairly clear with regard to the types of photographs being discussed. However, one can't clearly address statutorily the remote hypothetical that someone would be charged with a crime at age 18 for taking a naked photograph of his or her 17- year-old girlfriend or boyfriend because photography would then have to be excluded. Chair McGuire observed that photography may be one of the more obvious or common mediums since it's less expensive to produce. She said that she didn't believe that the [intent] is to create a huge net that would take in boyfriends and girlfriends who take naked photographs of each other. Rather, she posited, [intent] is that a heavy hand should be taken when one unlawfully exploits a minor and creates, produces, and sells child pornography. REPRESENTATIVE GRUENBERG pointed out, however, that the language of the statute is broader. He relayed that the subcommittee had discussed [his concern] and he thought the subcommittee had conceptually agreed to a three-year [proposal]. REPRESENTATIVE MEYER noted that that was correct. REPRESENTATIVE GRUENBERG suggested that this could be figured out in a day or so. He pointed out that this is the bill's [only committee of referral]. He said he believes this is good legislation that he would like to be able to support when it reaches the House floor. CHAIR McGUIRE related her position that it is highly unusual for her to assign legislation to a subcommittee. However, she did so with the understanding that there would be majority and minority representation and that there would be ample time to work through any problems. However, the result seems to be a flawed committee report. She announced her inclination to move the legislation out today and any amendments can be presented on the House floor. However, she said she would take an at-ease for Representative Gruenberg and Representative Meyer to discuss whether the language should be narrowed. The committee took an at-ease from 1:59 p.m. to 2:03 p.m. Number 2313 CHAIR McGUIRE, referring to AS 11.41.455(a), opined that the intent of producing has to be present, which, she added, isn't a photograph of one's boyfriend or girlfriend. REPRESENTATIVE GRUENBERG pointed out that AS 11.41.455(a) in part says: "A person commits the crime of unlawful exploitation of a minor if, in the state and with the intent of producing a ... photograph ... the person knowingly induces or employs a child under 18 years of age". He noted that the language "knowingly induces" could simply be asking the person under the age of 18. He specified that the toughest possible case would be one in which there is someone barely over 18 who asks someone barely under 18 if he or she can take a [naked] photograph of the other individual. He said he didn't have a problem with the aforementioned being a class B felony as it is currently. However, making it a class A felony is problematic. CHAIR McGUIRE remarked that she respects the philosophical differences on this matter, but offered her belief that the committee has gone as far as it can on this issue. TAPE 04-35, SIDE B Number 2393 CHAIR McGUIRE turned to the issue of creating the elements of the crime, and specified that one would want it be with the intent of producing and with all the different mediums. Furthermore, one would want it to be that it visually or orally depicts the conduct listed in AS 11.41.455(a)(1)-(7), which is very specific. She said that she sided with [Version H]. She also announced that she wouldn't hold the bill over any further. REPRESENTATIVE GRUENBERG specified that AS 11.41.455(a)(6) refers to, "the lewd exhibition of the child's genitals", which he said could simply be a nude photograph. He mentioned that during the subcommittee meeting he wasn't aware that there was a memorandum from Legislative Legal and Research Services, and he said he still hasn't really seen it. The only thing the subcommittee wasn't aware of when the subcommittee members made a decision based upon age was the potential conflict with another statute. Although he indicated he wasn't opposed to creating a floor amendment, this would be a different type of floor amendment. He suggested that members will be very [skeptical] of doing anything to this legislation other than "pressing the button." Therefore, Representative Gruenberg said he didn't feel that he was being left with much of a remedy. Furthermore, it's difficult politically to speak as he has on this legislation, although it may avoid significant injustice for some young person. CHAIR McGUIRE said she respected what Representative Gruenberg has to say, noting that she has allowed much latitude in order to allow [the discussion] to be part of the record. She indicated that [the record] factors into the interpretation. She pointed out that the fax of the statutes from the Public Defender Agency includes the statute relating to the unlawful exploitation of a minor, which amounts to almost one page of text. Furthermore, this statute goes into great detail with regard to the legislature's intent, specifically under the commentary section. She noted that [any member] has the ability to prepare written commentary to be adopted with the legislation. Moreover, she opined, the record has been established. Chair McGuire stated that in increasing the penalty to a class A felony relating to the unlawful exploitation of a minor, it's not the committee's intent to prosecute people in a boyfriend-girlfriend relationship for taking [naked] photographs of each other as discussed earlier. She reiterated that the record is clear that [this legislation addresses a situation in which [the exploitation of the minor] is intended for production and monetary gain. She again highlighted the conduct specified in [AS 11.41.455], which makes such actions deserving of a class A felony. Number 2169 REPRESENTATIVE GRUENBERG asked if there would be any great harm in holding this legislation over so that he could craft an amendment to say what has been discussed with regard to the intent of the legislation. REPRESENTATIVE MEYER agreed that the intent isn't to [prosecute] the individuals in the situation being discussed. Therefore, attaching a letter of intent, whether it be in this committee or on the House floor, would be fine, he said. However, Representative Meyer expressed concern with an amendment as he believes a letter of intent would be more appropriate. He highlighted that [AS 11.41.455 includes language] specifying "the person knowingly induces or employs a child under 18 years of age to engage in, or photographs, films, records, or televises ...". He recalled Anna Fairclough, Director of STAR, relaying the difficulty of proving any of these sexual crimes. Therefore, he surmised, [STAR] supports increasing the penalty to a class A felony because once a conviction can finally be obtained, the desire is to "put that person away" because [the crime] is so blatant. Representative Meyer said that this is why he isn't concerned about the aforementioned situation regarding 18- and 17-year-olds. REPRESENTATIVE GRUENBERG said that normally he would agree that a letter of intent would be fine. However, this type of criminal law [involves] superior court judges, prosecutors, and defense attorneys across the state. As a practicing attorney in trial, letters of intent are never used, and therefore it has to be placed in statute, he said. Representative Gruenberg stated that he wouldn't offer [any language] unless [the sponsor and the chair] agree to it. He expressed the need to have a narrow exception [in statute] so that those practicing in this area of law would be apprised of it. CHAIR McGUIRE remarked that she believes this matter is at an impasse and back to the place where the committee was before the subcommittee met. Chair McGuire announced, "We don't have the ability to do the type of thing that you [Representative Gruenberg] want to do." Number 1959 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), began by thanking Representative Meyer for working with the subcommittee regarding the concerns about the automatic waiver. Ms. Wilson said, "The amended version, with the automatic waiver part, excluding those kids from being automatically waived, is very helpful." However, Ms. Wilson expressed serious concern with regard to a situation in which an individual who is 18 years and one day old taking a consensual [naked] photograph. The aforementioned is producing a photograph; she emphasized that according to current statute, producing the photograph doesn't have to be for a commercial purpose or for sale. She added: "Just taking a photo is producing a photograph; so there doesn't have to be any intent to sell or to ... pass it around. So an 18-year-old ... takes a picture of their 17-year-old ... [sexual partner] and that's a class A felony, and that is very, very troubling." The notion of just trusting the district attorneys and the prosecutors to not prosecute such a situation is even more disturbing, she said. Ms. Wilson recalled that the testimony from the Division of Juvenile Justice was that most of the cases under this title [AS 11.41.455] were kids taking photographs of each other consensually. She said, "I don't think that you have a huge problem of the unlawful exploitation of a minor are acts under this particular statute [AS 11.41.455]." Ms. Wilson opined that it's worth pursuing only the true pedophiles. MS. WILSON turned to the commentary provided for [AS 11.41.455]. She informed the committee that when the statute was changed back in , the [legislature] deleted the language "for any commercial purpose" and the age was changed from "under 16 years of age" to "under 18 years of age". Therefore, Ms. Wilson suggested that the [penalty] be a class A felony if the [unlawful exploitation of a minor] is for a commercial purpose; this would address Representative Gruenberg's concern with regard to similarly aged kids [taking naked photographs of a boyfriend or girlfriend] and not doing it for a commercial purpose. Therefore, those [unlawfully exploiting a minor] for a commercial purpose would be targeted while not including those unintended to be included. She said a letter of intent offers no protection against a prosecution. She offered to work with the sponsor. Number 1798 CHAIR McGUIRE remarked that [this legislation] merely increases the penalty for the already existing law. Chair McGuire pointed out that the legal memorandum mentioned that there is an equal protection problem with a bifurcated age stipulation, and so the choice was made not to revamp all of [existing law]. REPRESENTATIVE ANDERSON informed the committee that he had just spoken with Legislative Legal and Research Services, and learned that letters of intent can be adopted [in the committee] or on the House floor, where the letter would be "somewhat ratified." In statute, codification occurs whereby there is a notation that specifies the existence and location of the letter of intent. Therefore, he suggested that if he were an attorney representing an individual who took photographs of his girlfriend and the young man is being charged with a class A felony, he would turn to the letter of intent, which he believes would rectify the situation. REPRESENTATIVE GRUENBERG suggested that an intent section could be included in the legislation. He asked if the sponsor would accept holding HB 334 [for that purpose]. REPRESENTATIVE MEYER said he would leave whether or not to hold the legislation over up to the chair. However, he characterized Representative Anderson's suggestion of adopting a letter of intent on the House floor as a good idea. REPRESENTATIVE GRUENBERG specified that he hasn't seen letters of intent referenced in the notes [of the statute]. However, an intent section in the legislation will appear in the notes [of the statute] and would satisfy him. He maintained his belief about the need to do this [in committee]. Number 1648 SUZANNE CUNNINGHAM, Staff to Representative Kevin Meyer, Alaska State Legislature, related her belief that a letter of intent from the committee would satisfy "the request of the sponsor." REPRESENTATIVE GARA commented that this has been the most frustrating meeting of the House Judiciary Standing Committee he has attended. He said that speaking as an attorney who has practiced law for over a decade, he believed that a letter of intent isn't going to impact a case. The courts disregard letters of intent because the rule of statutory construction that the court has to follow is that if the law is clear, then legislative history can't be looked at. Therefore, it's very important that criminal statutes be crafted as narrow as possible and so that it only applies to those intended. He went on to say: The moment we start drafting criminal statutes that take in people who we don't want to prosecute, but say, "Well, let's just trust the government and trust that the government won't prosecute the people we didn't want to prosecute even though we told them they could prosecute them in the ... statute." The moment we start doing that, we've crossed a line ... that I don't ever want to cross. REPRESENTATIVE GARA opined that this issue should be addressed within the language of the legislation. When a criminal statute is crafted, one can err two different ways. First, the statute could be made too broad so that it applies to people to whom it wasn't intended to apply. Second, the statute could be made too narrow so that it applies to most of those intended, but not everyone. Given those choices, Representative Gara offered his belief that it's safer to write the legislation to address essentially almost everyone desired. He said he didn't have a problem making conduct being done for a commercial purpose a class A felony, which would exclude the possibility of prosecuting two kids [in the situation discussed earlier]. [Unlawful exploitation of a minor] for commercial purposes is the worst, and any other [lesser] conduct would remain a class B felony and the judge would retain the discretion to place an individual in jail for up to 10 years. REPRESENTATIVE MEYER interjected that the first offense for a class B felony carries a penalty of one to four years. Representative Meyer said he viewed an individual who entices a child to the basement to disrobe, but not for commercial purposes, as a class A felon. REPRESENTATIVE GARA disagreed and offered his belief that it's a class B felony. Although the normal sentence range is zero to four years, aggravated offenses can result in one going to jail for ten years for a class B felony. REPRESENTATIVE GRUENBERG pointed out that the committee packet includes [a spreadsheet] specifying class A and B felonies. He informed the committee that a class B felony carries a penalty of one to four years while a class A felony carries a five-year penalty. Number 1398 MS. WILSON specified that the sentencing range for a first-time offense of class B felony is one to four years. The penalty for a second-time offense of a class B felony starts at four years and can reach up to ten years. However, she noted that there could be aggravators in a nonpresumptive situation, which could reach up to four years for a first-time offense and would require some extensive factors to go beyond a four-year penalty for a first-time offender. In further response to Representative Gara, Ms. Wilson clarified that the sentencing range is zero to ten years, but it would have to be a rare situation for a first-time offender to be sentenced to ten years. Number 1363 PATTY WARE, Director, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), thanked the sponsor and the subcommittee for making changes with regard to the department's concerns pertaining to exempting this crime from the automatic waiver provision within the delinquency statutes. Ms. Ware turned to Section 2, subsection (e)(2), in Version H of HB 334. She informed the committee that she reviewed [DJJ's] database, which revealed that since 1991, 12 juveniles have been charged with distribution of child pornography. She noted that none of those juveniles were charged more than once. Therefore, there is no data to support that [Section 2, subsection (e)(2)] would impact any juveniles. CHAIR McGUIRE clarified that the presumptive sentencing only takes place on a second offense. REPRESENTATIVE GRUENBERG asked Ms. Wilson whether a letter of intent or an intent section in the legislation would make an impact in the [courtroom]. MS. WILSON said she agrees with Representative Gara that the statute is controlling, and furthermore the letter of intent won't be considered if it contradicts the language of statute. With regard to Representative Gara's earlier suggestion to insert "for a commercial purpose", she surmised that this would get at the target group by adding another offense, "for a commercial purpose", which would be raised to a class A felony. REPRESENTATIVE GRUENBERG asked whether adding an intent section to the legislation that would go in the uncodified language and appear in the notes would have an impact in the [courtroom]. MS. WILSON said that she didn't know of anyone who ever looks [at the uncodified language in the notes]. The attorneys tend to look at what is in statute. Even if there is a reference, if the language in the statute says one thing and [the intent] in the legislation says another, the attorneys tend to follow the statute. Number 1130 REPRESENTATIVE SAMUELS remarked that a situation in which an individual is making child pornography in his or her basement just because he or she likes it seems worse than when the purpose is to sell it. Although both are bad, adding the "commercial" language doesn't really help, he opined. MS. WILSON confirmed that the situation proposed by Representative Samuels is a class B felony. However, [making child pornography] for commercial purposes is even worse, she opined, and thus she didn't believe elevating that to a class A felony was inconsistent. REPRESENTATIVE SAMUELS acknowledged that both situations are equally bad. CHAIR McGUIRE asked whether [unlawful exploitation of a minor] was ever lower than a class B felony. MS. WILSON said that she wasn't sure of the code or the sentencing before the early 1980s, but she offered to research that matter. CHAIR McGUIRE announced that HB 334 would be set aside, to be brought up later in the meeting. HB 334 - UNLAWFUL EXPLOITATION OF MINOR Number 0066 CHAIR McGUIRE announced that the committee would return attention to HOUSE BILL NO. 334, "An Act relating to unlawful exploitation of a minor." Number 0077 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of HB 334, announced that the differences between Representative Gruenberg and himself are close to being resolved. Therefore, he said he believes it will be a matter of intent language or a simple amendment to illustrate that the legislation doesn't intend to increase the penalty to a class A felony in cases of young people having consensual sex and taking pictures of each other. Representative Meyer requested that the committee report the legislation from committee and allow he and Representative Gruenberg to continue to work on this before it reaches the House floor. Number 0140 REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB 334, Version 23-LS1246\H, Luckhaupt, 3/3/04, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 334(JUD) was reported from the House Judiciary Standing Committee.