Legislature(1999 - 2000)
02/24/1999 01:37 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 5 - MISPRISION OF FELONY SENATOR DAVE DONLEY presented a work draft for SB 5 that establishes the crime of misprision and makes it applicable to unclassified felonies and felony crimes against a person. The bill makes the crime of misprision a class A or B felony, depending on the severity of the crime witnessed. This version adds an affirmative defense for witnesses who do not report a crime in a timely manner out of fear they may be in danger if they do so, and specifies that the state need not prove a person knew the class of felony they witnessed in order to be prosecuted under this statute. Number 052 SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the committee substitute. Without objection, the committee substitute was adopted. MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender Agency, said the bill conflicts with the privilege of self- incrimination, which gives any person who fears they may be charged with an offense the right not to report the crime. SB 5 may result in requiring a person who has nothing to do with an offense being required to report it, while a person with some involvement in a crime would not. MR. MCCUNE proposed Alaska has other statutes, such as "hindering prosecution," with which to prosecute a person who renders assistance to a criminal by providing transportation, money, or concealment. Number 100 SENATOR PEARCE asked how Alaska would prosecute the Nevada case in which a young man witnessed, but did not participate in a crime. MR. MCCUNE replied in that case the young man provided transportation to the perpetrator. CHAIRMAN TAYLOR expressed concern that the intent of this bill is to criminalize behavior similar to "abetting" a criminal, or being an accessory to a crime, without actually participating in the crime. MR. MCCUNE explained to aid or abet a criminal involves complicity in the crime and criminal intent. A person convicted as an accessory can be punished in the same manner as the principal perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution statute requires intent and MR. MCCUNE replied it requires intent to hinder the apprehension or prosecution of a criminal. CHAIRMAN TAYLOR commented that the level of intent in SB 5 is one level lower than that. SENATOR PEARCE indicated her concern with situations of abused women and children where there is knowledge and implicit support of the abuse by family and community members. Part of her intent with SB 5 is to see these cases prosecuted. She said she has no answer to the self-incrimination question, but this is a widespread problem within Alaska and, "I'm not convinced that we could use 'hindering prosecution' for the sorts of cases that I am thinking about . . . " SENATOR PEARCE remarked that it is unfair to allow children to be abused because of a protection from self-incrimination. "I don't care what the Constitution says in this particular case - it doesn't work for me in this case." CHAIRMAN TAYLOR said authorities are often constrained by a pattern within dysfunctional families that keeps abuse from being reported. He asked, "Are we going to be imprisoning moms because they didn't go forward earlier?" SENATOR PEARCE replied the language on lines 12-14 of page 1 was inserted to provide an affirmative defense for most of those cases, but it does not cover cases in which both parents should be prosecuted. She said, "If either parent stands by and watches while the other parent abuses the child, as far as I am concerned, both parents should be prosecuted in some manner." CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal safety. SENATOR PEARCE said language had been inserted into the bill to deal with that "fear factor." Number 288 SENATOR HALFORD explained there is another factor; the children themselves do not come forward for fear of losing one of their parents, despite how deviant that parent may be. He said he did not want to force the loss of both parents or compel the family to go to court, instead of getting counseling. SENATOR PEARCE did not dispute this point, but said, "We have to put some faith in the prosecutors' . . . ability to decide which cases should be prosecuted and which ones shouldn't." She said SB 5 would provide a method to prosecute those who should be prosecuted. SENATOR HALFORD concluded this is a difficult area of discussion. SENATOR PEARCE agreed this is a difficult subject, but emphasized she appreciated having a full discussion on the bill. She proposed that in some cases those who should be prosecuted are family members but not necessarily the parents of the abused child. CHAIRMAN TAYLOR asked how the bill will affect counselors, preachers, police officers and school teachers; the bill has a wide sweep. SENATOR HALFORD said the bill only exempts lawyers. Number 365 MS. ANNE CARPENETI, representing the criminal division of the Department of Law, thanked the committee for the work done on the bill in response to the concerns of the Department. MS. CARPENETI reported the bill is still too broad and requires victims of rape and domestic violence as well as spouses of child abusers to report these crimes or be subject to a criminal violation. The bill forces parents to report spouses to the criminal justice system, rather than allowing them the choice to pursue counseling or seek another solution. She suggested limiting the offenses covered by SB 5 to murder, attempted murder, kidnaping, arson and maybe first-degree sexual abuse of a minor. The nature of these crimes offset some of the concerns raised because these are the most serious crimes where victims are unable to be heard. SENATOR TORGERSON asked how a victim of domestic violence or rape could be prosecuted if the victim's testimony would be the evidence of the crime. MS. CARPENETI said a person is required to report an offense unless he or she is the perpetrator and therefore covered by the right against self-incrimination. SENATOR HALFORD said parents who know their child is being abused are probably violating present law but they are protected by the privilege against self- incrimination. Consequently, "If they are the good parent, who didn't know and now finds out and goes to a psychological professional . . . and takes their advice . . . you can't claim self incrimination - so the self-incrimination only protects the guilty; it doesn't protect the parent who is truly operating in the best interests of the child." SENATOR PEARCE testified the intent of SB 5 is not to compel a rape victim to make a report, but to require a witness of such a crime report it. SENATOR PEARCE suggested there has to be a way to get at recidivist pedophiles and protect "the next child, or the next child or the next child." She said it seems the committee is considering sexual abuse of a child by a non-parent a worse crime than sexual abuse by a parent. She does not think anyone subscribes to this view but said, "That is what happens if we don't somehow deal with the parent - they are just as culpable . . . " Number 479 SENATOR HALFORD cited a real life example to illustrate his point that, "it is very, very difficult to make a parent take an action against their child for the protection of the future." SENATOR DONLEY asked if deleting the portion of SB 5 relating to class B felonies would give the bill a better focus. ANNE CARPENETI said yes. Number 525 SENATOR DONLEY moved Amendment #1: insert the phrase, "other than a victim" on page 1, line 5 after the word "person." After some discussion, he modified his motion to insert the phrase after the word "person" on line 4, page 1. Without objection, the amendment was adopted. SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and page 1, line 8, and page 2, line 7 "or class B felony," to focus the bill on very serious crimes. Number 557 SENATOR HALFORD suggested that the bill should specify the exact crimes covered rather than use the statutory reference. He asked how many crimes would fall under the scope of the bill. After discussion, the consensus of the sponsor, the Department and the committee was that the list of crimes would not be too long to specifically name them in the text of the bill. SENATOR PEARCE stated that her concerns would be covered if the bill encompassed unclassified felonies. TAPE 99-12, SIDE B Number 592 SENATOR DONLEY withdrew Amendment #2. He suggested the committee consider a conceptual amendment to limit the bill to unclassified felonies and first-degree arson, and list the offenses specifically in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's idea as Amendment #3. Without objection, Amendment #3 was adopted. SENATOR ELLIS asked how the new requirement for "timely" reporting in the bill would compare with the previous requirement for immediate reporting. SENATOR DONLEY observed that the requirement for timely reporting allows for a more flexible application. MS. CARPENETI agreed. Number 553 CHAIRMAN TAYLOR reflected that the crime created in this bill is difficult to differentiate from conspiracy and accessory. He said the committee will work on another draft of SB 5.