Legislature(2003 - 2004)

03/16/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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 [1983],  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.                                                                                    
                                                                                                                                

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