Legislature(2003 - 2004)
04/15/2004 09:08 AM RLS
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 334-UNLAWFUL EXPLOITATION OF MINOR CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 334, "An Act relating to unlawful exploitation of a minor." Number 028 REPRESENTATIVE COGHILL moved to adopt CSHB 334, Version 23- LS1246\Q, Luckhaupt, 4/6/06, as the working document. There being no objection, Version Q was before the committee. Number 037 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of HB 334, remarked that initially the intent of HB 334 was simple in that the intent was to change the criminal status of exploitation of a minor from a class B felony to a class A felony. As a member of Standing Together Against Rape (STAR) and the father of two young daughters, Representative Meyer mentioned that he may have a conflict of interest on this matter. He pointed out that in Anchorage there have been some high profile cases in which people have been abusing minors and making child pornography. Representative Meyer clarified that "sexual exploitation" doesn't involve any sexual contact with [minors], rather it's the making of photographs, film, or video of minors. REPRESENTATIVE MEYER recalled the hearings on this legislation in the House Judiciary Standing Committee where the discussion turned to the question of what is worse: making child pornography or selling it. Representative Meyer opined that making child pornography is worse because without making it there is nothing to sell. Furthermore, some people make child pornography for their own use and don't actually sell it. He recalled that Representative Gruenberg felt that the selling of child pornography is as bad as making child pornography. Therefore, Representative Gruenberg proposed an amendment to change the distribution of child pornography to a class A felony after the second offense. The aforementioned amendment was adopted. Although the past criminal code reveals that there aren't many circumstances in which [minors] were actually charged with this, the difficulty arose when the committee began to pose "what if" scenarios. For example, what if an 18-year- old boy takes [naked] photographs of his 17-year-old girlfriend that are ultimately placed on the Internet and the girl's father files charges against the boy. The father could do the aforementioned now and [the boy] could be charged with a class B felony. The question is whether to make it a class A felony, to which Representative Meyer announced that is not his intention. REPRESENTATIVE MEYER clarified that he isn't [targeting the minors] who are having consensual sex rather [the legislation intends] to target those adults who are enticing [minors] and unlawfully exploiting them. He recalled that the House Judiciary Standing Committee accepted making this a class A felony, but the desire was to attach a letter of intent. After he and Representative Gruenberg worked on a letter of intent, the two realized that people don't really pay attention to letters of intent. Therefore, the discussion turned to the possibility of making the second offense of unlawful exploitation of a minor a class A felony. He suggested that if minors in the situation laid out above are charged with a class B felony, those minors probably deserve a class A felony for a subsequent offense. Representative Meyer characterized the change of the second offense to a class A felony as a reasonable compromise. Representative Meyer pointed out that the committee packet should include a breakdown of offenses. A class B felony, first offense receives one to four years while a class B felony, second offense receives four years. However, a class A felony, first offense receives five years. Therefore, one is gaining a year of punishment by raising the second offense of unlawful exploitation of a minor to a class A felony. Number 120 REPRESENTATIVE McGUIRE inquired as to why Version Q is being proposed. SUZANNE CUNNINGHAM, Staff to Representative Kevin Meyer, Alaska State Legislature, explained that [in Version Q] the second offense of unlawful exploitation of a minor is a class A felony. REPRESENTATIVE McGUIRE asked if the auto waiver is addressed [in Version Q]. REPRESENTATIVE MEYER confirmed that the auto waiver was left out of [Version Q]. He noted that Representative Samuels was comfortable with [leaving the auto waiver out] since the second offense is [increased to] a class A felony. REPRESENTATIVE KERTTULA surmised then that there has been no automatic waiver, and therefore it wouldn't matter whether it was a second offense for a juvenile [because that juvenile] wouldn't be in the adult system. She asked if she is correct. MS. CUNNINGHAM answered that for the second offense, a juvenile would be waived into adult court for the class A felony. REPRESENTATIVE KERTTULA inquired as to other crimes in which the automatic waiver of a juvenile occurs. REPRESENTATIVE McGUIRE turned attention to the auto waiver statute, AS 47.12.030. The auto waiver statute says that for a class A felony or unclassified felony, or a felony against a person, there is an auto waiver of a minor to adult court if the minor is 16 years of age. Representative McGuire explained that when [unlawful exploitation of a minor] was going to be made a class A felony on the first offense, she was concerned about a scenario as laid out earlier between a boyfriend and girlfriend. She recalled that the desire was to make an exemption to the auto waiver. However, [Version Q] specifies that [unlawful exploitation of a minor] would be a class A felony on the second offense. Therefore, the auto waiver isn't included. REPRESENTATIVE BERKOWITZ pointed out that the auto waiver statute applies to any felonies against a person and unlawful exploitation against a minor is a crime against a person. He asked if currently the auto waiver isn't [available]. REPRESENTATIVE MEYER specified that currently unlawful exploitation against a minor carries a class B felony. He related his understanding that the auto waiver only refers to class A felonies. REPRESENTATIVE KERTTULA remarked that she wasn't sure. REPRESENTATIVE BERKOWITZ turned to the auto waiver statute, AS 47.12.030, and pointed out that it says in part "in which the minor is alleged to have used a deadly weapon in the commission of the offense". There isn't a deadly weapon used in [the unlawful exploitation of a minor]. Number 176 REPRESENTATIVE KERTTULA inquired as to the broadness of the [definition] of "exploitation of a minor." If the aforementioned language refers to 15-16 year olds having sex, then she remains concerned that [the second offense being a class A felony] is too harsh. MS. CUNNINGHAM pointed out that AS 11.41.455 defines the crime of unlawful exploitation of a minor. She noted that [the sponsor] worked fairly close with the Division of Juvenile Justice, which had the same concern as Representative Kerttula. However, after the division compiled a 10-year history with regard to the minors who have committed this crime and discovered that none of them were second offenders. REPRESENTATIVE KERTTULA inquired as to the definition of "exploitation." REPRESENTATIVE McGUIRE specified that the definition refers to photographs, videos, and the making of [pornography]. She clarified that "exploitation" doesn't refer to consensual sex, rather "exploitation" involves enticing a minor into a situation in which pornography is made. REPRESENTATIVE KERTTULA highlighted the language "knowingly induces" in AS 11.41.455. She reiterated her concern with regard to consensual behavior rising to a class A felony. REPRESENTATIVE MEYER informed the committee that this legislation was brought forward [on behalf of] STAR and the Council on Domestic Violence & Sexual Assault, entities that frequently apply for federal grants. Representative Meyer indicated that the committee packet should include documents showing that Alaska's criminal [statutes], as compared to federal [statutes], are very liberal for this particular offense. The aforementioned impacts the above-mentioned entities when trying to obtain federal [grants]. REPRESENTATIVE BERKOWITZ recalled that the original legislation back in 1978 included the component that [the unlawful exploitation of a minor] was being done for commercial purpose. He mentioned the aggravator section of Title 12, and recalled that if one commits a crime for commercial purposes, it constitutes an aggravator. Therefore, the sentences could be increased above the norm. Representative Berkowitz opined that the sentences Representative Meyer specified earlier are the standard realms, but the courts have the ability to deviate from those in exceptional cases. Number 224 CHAIR ROKEBERG related his understanding that Representative Kerttula is concerned with regard to whether there could be multiple charges by a vigorous district attorney. He surmised that one couldn't necessarily be charged with assault and exploitation [of a minor] unless it fits the fact pattern. He asked if that is correct. REPRESENTATIVE BERKOWITZ surmised that Chair Rokeberg was asking if, in a continuing course of conduct, there could be multiple charges in that continuing course of conduct. CHAIR ROKEBERG interjected, "Oh, yeah you could ... if it was a continuing course of conduct. But ... I think you're ... concerned about isolated incidence or ..." REPRESENTATIVE KERTTULA stated that she is concerned about the auto waiver with which she didn't agree, even for a second offense. "We're talking about kids and I just don't see a reason why you don't have a hearing before a judge about whether they should be waived or not," she explained. She stressed that it would be a step and the waiver could occur with judicial involvement. She surmised that CSHB 334(JUD) took out the auto waiver. REPRESENTATIVE McGUIRE explained that Section 3 of CSHB 334(JUD) addresses the auto waiver. On page 2, line 14, of CSHB 334(JUD) the felonies that would be included under the unlawful exploitation of a minor were taken out of the auto waiver. She related her understanding that Version Q takes the auto waiver out and only increases the crime to a class A felony on the second offense. Representative McGuire clarified, "Representative Rokeberg, Mr. Chairman, just to be clear: it ... cannot be within the same first offense, it has to be previous conviction of an unlawful exploitation of a minor in either this jurisdiction or another." Number 260 REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature, turned to the auto waiver, and explained that it only applies to those age 16 and 17. "To get caught, go through the system, get caught again, ... they'd have to know what they're doing," he remarked. In such a situation, he opined that "you'd want to come down on them." For the very young, say 15 years of age, those minors do not ever get auto waived because there is always a waiver hearing. He said that since the auto waiver only applies to those 16 and 17 years of age, the window for a second offense is almost nonexistent. REPRESENTATIVE MEYER pointed out that a first offense would be a class B felony, which is a fairly serious offense. If the individual hasn't learned from that, then he agreed that he or she deserves the class A felony. Representative Meyer opined that Version Q is a good compromise. REPRESENTATIVE McGUIRE inquired as to why this wasn't addressed in the House Judiciary Standing Committee. REPRESENTATIVE MEYER reiterated that [CSHB 334(JUD)] was reported from the House Judiciary Standing Committee with the understanding that he and Representative Gruenberg were going to continue to work on the legislation and make the amendment on the House floor. However, he felt that the change encompassed in Version Q is too large to do on the House floor. Therefore, he requested a House Rules Standing Committee hearing. Number 310 REPRESENTATIVE KERTTULA announced that she is more comfortable with CSHB 334(JUD) because she believes there could be some difficult situations. CHAIR ROKEBERG opined that Representative Samuels' and Meyer's arguments are very compelling. The [possibility] of this falling unjustly on some teenager is slim, and furthermore the judicial discretion would address that. REPRESENTATIVE KERTTULA pointed out that [under Version Q] the problem is that it will be done automatically, without any judicial involvement. She remarked that she has seen teens be charged with things that are surprising. CHAIR ROKEBERG commented, "This is the second offense." REPRESENTATIVE BERKOWITZ pointed out that the committee packet includes documents from the Division of Juvenile Justice, which specify the number of youth charged with this conduct. He related that the document specifies that in 2004 there was one 18-year-old charged who was waived. In 2003 there was one 13- year-old for whom the waiver wouldn't matter. In 1999, four [minors] were charged and the cases were dismissed. Therefore, he concluded that there just aren't a lot of cases that impact juveniles. He opined that getting hung up on the juvenile waiver issue isn't focusing on the appropriate issue. However, he expressed concern with the legislature tinkering with what judges do. He noted that currently [unlawful exploitation of a minor] is a class B felony that a judge can ramp up for second and subsequent offenses. In essence, this legislation reaches into the judiciary and instructs the judges with regard to sentencing. Although Representative Berkowitz related his belief that harsher sentences for this type conduct are appropriate, [the legislature] should be mindful of the separation of powers issue. Number 0356 REPRESENTATIVE COGHILL moved to report CSHB 334, Version 23- LS1246\Q, Luckhaupt, 4/6/06, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE BERKOWITZ highlighted that all the fiscal notes are zeroed out, which he interpreted to mean this legislation is completely ineffective or else people aren't "being straight" with the fiscal notes. Therefore, he expressed the need to be vigilant of zeroed fiscal notes. Number 368 CHAIR ROKEBERG, upon determining there were no objections, announced that CSHB 334(RLS) was reported from the House Rules Standing Committee.