Legislature(2003 - 2004)

04/15/2004 09:08 AM RLS

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

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