Legislature(2009 - 2010)BELTZ 105 (TSBldg)

01/25/2010 01:30 PM Senate JUDICIARY

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Heard & Held
Heard & Held
        SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING                                                                    
1:42:55 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 222.                                                                             
DANIEL  SULLIVAN, Attorney  General,  Alaska  Department of  Law,                                                               
thanked the  committee for expeditiously  hearing SB 222  and for                                                               
the spirit  of cooperation  that the  members have  displayed. He                                                               
reported that sexual  assault and domestic violence  has been the                                                               
number one focus in the  criminal division since he was appointed                                                               
to the  office last  June. Over  the course  of the  last several                                                               
months DOL  has worked on  initiatives with the Governor  and the                                                               
Department  of  Public  Safety  to provide  a  foundation  for  a                                                               
sustained, comprehensive approach to  addressing this epidemic in                                                               
Alaska. SB 222 is part of that approach.                                                                                        
1:50:25 PM                                                                                                                    
ATTORNEY GENERAL SULLIVAN highlighted 5 key elements in SB 222.                                                                 
   1. It would prohibit suspended imposition of sentences for                                                                   
     people convicted of human trafficking and possession or                                                                    
     distribution of child pornography.                                                                                         
   2. It would make it against the law not only to possess child                                                                
     pornography but  also to  access it on  a computer  with the                                                               
     intention  of viewing  it.  A recent  ruling  by the  Alaska                                                               
     Court of  Appeals held  that current  law does  not prohibit                                                               
     viewing child pornography on a computer.                                                                                   
   3. The courts could prohibit sex offenders from using a                                                                      
     computer or communicating with children under age 16.                                                                      
   4. It provides enhanced sentencing with regard to providing                                                                  
     aggravating factors when the defendant had knowledge that                                                                  
     the victim was impaired due to having consumed drugs or                                                                    
   5. A person who was required to register as a sex offender in                                                                
     another state would be required to register as a sex                                                                       
     offender in Alaska if they were to move to this state.                                                                     
He emphasized that the ideas in  this and similar bills come from                                                               
DOL's  front-line  prosecutors like  Mr.  Svobodny  who look  for                                                               
loopholes  in  the  law  and  for areas  where  the  law  can  be                                                               
strengthened to  better protect Alaskans  and bring  criminals to                                                               
justice.  These   are  very  committed  and   outstanding  public                                                               
servants, he said.                                                                                                              
ATTORNEY  GENERAL SULLIVAN  concluded that  SB 222  is part  of a                                                               
broad,  comprehensive,   and  sustained   strategy.  It   is  the                                                               
continuation  of   a  very   positive  collaboration   with  this                                                               
committee  to  decrease  the  epidemic   of  sexual  assault  and                                                               
domestic violence  in this state,  to keep Alaskans safe,  and to                                                               
bring criminals to justice.                                                                                                     
1:56:06 PM                                                                                                                    
CHAIR  FRENCH thanked  Attorney General  Sullivan and  recognized                                                               
Commissioner Masters.                                                                                                           
JOSEPH MASTERS,  Commissioner, Department of Public  Safety, said                                                               
he would highlight the numbers  related to the sexual assault and                                                               
domestic violence epidemic in Alaska.                                                                                           
   · Alaska is number 1 in the nation for victimization of women                                                                
     and children and it has been for many years.                                                                               
   · Women in Alaska are 2.5 times more likely to be raped than                                                                 
     women in any other state.                                                                                                  
        · Women in Anchorage are 2.8 times more likely to                                                                       
          be raped.                                                                                                             
        · Women in Fairbanks are nearly 5 times more likely                                                                     
          to be raped.                                                                                                          
        · Alaska Native women in this state have even                                                                           
          higher rates of victimization.                                                                                        
   · Children in Alaska are 6 times more likely to be sexually                                                                  
     abused according to national statistics.                                                                                   
COMMISSIONER  SCHMIDT said  he uses  national statistics  because                                                               
there are no state statistics  of victimization. We're working on                                                               
that,  he said.  SB 222  focuses on  offender accountability  and                                                               
gives  state troopers  additional tools  to target  offenders and                                                               
hold them accountable for their actions.                                                                                        
1:59:48 PM                                                                                                                    
CHAIR FRENCH said  he's aware that DPS has been  working to get a                                                               
victimization survey  done and  he too is  interested in  that. I                                                               
hope we  get that funded this  year because there's always  a gap                                                               
between  what's  reported  to  the  police  and  what's  actually                                                               
happening, he said.                                                                                                             
SENATOR  MCGUIRE added  that  if  there is  a  single topic  that                                                               
legislators  would like  the attorney  general  to address,  it's                                                               
this one.  It's a  relief that the  administration is  focused on                                                               
this complex and sensitive issue. Thank you, she said.                                                                          
RICHARD  SVOBODNY, Deputy  Attorney  General, Criminal  Division,                                                               
Department  of Law,  reported that  he's been  in contact  with a                                                               
number  of   state  experts  in   procedures  used   in  criminal                                                               
prosecutions  and  many have  said  that  Alaska laws  on  sexual                                                               
assault and  domestic violence are  the best they've seen  in the                                                               
country. However, that  doesn't mean that they  couldn't use some                                                               
"tweaks," he said.                                                                                                              
Sections  1 and  2 of  the bill  propose to  remove reference  to                                                               
discretionary parole  from AS 11.56.759(a)  and (c). He  asked if                                                               
Mr. Stark could  join him to explain the problems  that this 2007                                                               
statutory change has been causing the State Board of Parole.                                                                    
2:05:49 PM                                                                                                                    
MICHAEL STARK, Member, State Board  of Parole, said he has served                                                               
on  the  board  for  nine  years. Previously  he  worked  in  the                                                               
attorney general's office for 27  years, 22 years as lead council                                                               
to DOC and 15 years as  council to the parole board. Currently he                                                               
is serving on the board as a member, not an attorney.                                                                           
MR. STARK  explained that probation  is when the  court sentences                                                               
somebody  and suspends  part  of the  sentence.  For example,  if                                                               
somebody is given  a six-year sentence with  two years suspended,                                                               
they will serve  four years after which they are  released and on                                                               
probation for up  to ten years for non-sex offenses  and up to 25                                                               
years for sex  offenses. That person is  under supervision during                                                               
probation and could be returned to  custody to serve the two year                                                               
suspended  portion  of   their  sentence  if  they   are  out  of                                                               
compliance with their probation conditions.                                                                                     
MR.  STARK continued  to  explain  that there  are  two kinds  of                                                               
parole  - mandatory  and discretionary.  With  a few  exceptions,                                                               
offenders  serving   more  than  a  two   year  sentence  receive                                                               
mandatory  parole after  serving  two-thirds  of their  sentence.                                                               
They serve the  last third on the street as  a mandatory parolee.                                                               
If, at  sentencing, the court  had suspended  part of his  or her                                                               
sentence,  he or  she  would  be on  the  street  as a  mandatory                                                               
parolee  also on  probation. Parole  typically,  but not  always,                                                               
expires  before probation.  Discretionary  parole,  on the  other                                                               
hand, comes about as a result  of a discretionary decision by the                                                               
parole board, and not as  a matter of law. Discretionary parolees                                                               
are less common and typically do far better out on the street.                                                                  
MR. STARK  said that when  the criminal statute AS  11.56.759 was                                                               
adopted  it  was  intended  to  deal  with  the  long  period  of                                                               
probation  supervision,  particularly   for  sex  offenders.  The                                                               
statute created  a new misdemeanor  offense, with up to  one year                                                               
in  jail,  for  probationers  and   parolees  who  violate  their                                                               
probation or  parole. The  fairly serious  unintended consequence                                                               
is that attorneys are telling their  clients not to talk to their                                                               
probation and parole  officers and not to say  anything when they                                                               
go  before the  parole board  because they  could potentially  be                                                               
prosecuted. Because  of the  Fifth Amendment  we don't  know what                                                               
these people  are doing and the  result is increased risk  to the                                                               
public, he said.                                                                                                                
2:12:02 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  what  the  consequences  are  if  a                                                               
parolee is non-compliant.                                                                                                       
MR. STARK replied the parolee could be returned to custody.                                                                     
SENATOR  WIELECHOWSKI asked  what the  parole board  could do  if                                                               
someone exercised  their Fifth Amendment  right in response  to a                                                               
question from the parole board.                                                                                                 
MR.  STARK replied  it  has  the authority  to  revoke good  time                                                               
without going  through the  court, but that  might not  always be                                                               
the best  solution. Because  of the  potential for  being charged                                                               
with a  new crime,  attorneys are advising  their clients  not to                                                               
talk.  The result  is that  sex offenders  no longer  communicate                                                               
with the parole board the way they did at one time.                                                                             
SENATOR WIELECHOWSKI  asked if he's missing  something because it                                                               
sounds as  though the parole  board could just revoke  if someone                                                               
isn't cooperating.                                                                                                              
MR. STARK  replied that's  always an  option, but  it's expensive                                                               
and in the long term may not  best serve the public if the person                                                               
really doesn't present a risk.                                                                                                  
2:16:06 PM                                                                                                                    
CHAIR FRENCH  summarized that the  proposed change is  to address                                                               
Fifth Amendment issues  that arise due to the  fact that parolees                                                               
could be  charged with new  crimes as  a result of  violating the                                                               
conditions of  their probation or  parole. He asked  how striking                                                               
"parole" fixes the problem.                                                                                                     
MR.  STARK replied  it  won't totally  cure  the problem  because                                                               
people could still  be prosecuted on the probation  level, but it                                                               
will  help quite  a bit.  This  addresses the  problem the  board                                                               
often sees.                                                                                                                     
CHAIR FRENCH asked if the board  is trying to preserve some sense                                                               
of flexibility in dealing with parolees.                                                                                        
MR. STARK  said yes and to  serve their primary duty  which is to                                                               
protect   the  public   while  working   with  the   offender  to                                                               
rehabilitate him or herself.                                                                                                    
CHAIR FRENCH summarized that because  many violations go straight                                                               
to the parole board, and  because violating a condition of parole                                                               
has  become  a  substantive  crime   in  its  own  right,  public                                                               
defenders are advising their clients  not to cooperate with their                                                               
parole officers.                                                                                                                
MR. STARK replied  that's been happening since July  1, 2007 when                                                               
the law changed.                                                                                                                
2:19:12 PM                                                                                                                    
SENATOR  EGAN asked  if  someone who  appears  before the  parole                                                               
board is always represented by council.                                                                                         
MR. STARK replied they can waive  that right, but more often than                                                               
not they are represented.                                                                                                       
CHAIR FRENCH asked Mr. Steiner his view on Sections 1 and 2.                                                                    
2:19:52 PM                                                                                                                    
QUINLAN  STEINER,   Public  Defender,  Public   Defender  Agency,                                                               
Department  of Administration,  Anchorage,  said  he agrees  that                                                               
striking  the  language would,  in  some  situations, remove  the                                                               
potential for someone to make a Fifth Amendment claim.                                                                          
CHAIR FRENCH asked if he's  aware that public defenders have been                                                               
advising  parolees not  to answer  questions for  fear of  future                                                               
MR.  STEINER  replied, "I'm  aware  that  after discussions  with                                                               
clients  some  of  our  attorneys will,  in  fact,  advise  their                                                               
clients that  they have  Fifth Amendment  claims with  respect to                                                               
certain questions."                                                                                                             
SENATOR  WIELECHOWSKI  asked,  if   this  law  were  changed,  if                                                               
parolees would  still potentially  be incarcerated  for admitting                                                               
to  crimes   in  discussions  with  their   parole  or  probation                                                               
MR. STEINER replied there is that potential. He continued:                                                                      
     If you were  to admit a specific conduct  that could be                                                                    
     charged  under  this statute,  then  you  would have  a                                                                    
     Fifth  Amendment  claim.  Broadly  speaking,  admitting                                                                    
     criminal  conduct could  potentially subject  you to  a                                                                    
     criminal  charge.   But  this   just  deals   with  the                                                                    
     particular statute  of committing  a violation  of your                                                                    
     parole or probation.                                                                                                       
MR.  STARK said  he absolutely  supports prosecuting  someone who                                                               
admits to  committing a crime.  This is about someone  that stops                                                               
talking altogether because of the  potential of being charged for                                                               
admitting  to  non-criminal  behavior like  violating  curfew  or                                                               
taking  a drink.  It's the  innocent, non-criminal  behavior that                                                               
they are  no longer communicating  that is  key to being  able to                                                               
supervise them on the street, he said.                                                                                          
2:23:16 PM                                                                                                                    
SENATOR WIELECHOWSKI  pointed out  that it's  a crime  if someone                                                               
violates curfew  or has  contact with  children when  they aren't                                                               
supposed to.                                                                                                                    
MR.  STARK clarified  that it's  a  violation of  parole and  the                                                               
person could be  returned to prison, but it's not  a crime in and                                                               
of itself.                                                                                                                      
SENATOR WIELECHOWSKI  asked if he's  saying that under  this law,                                                               
once a  person makes that admission  it's a crime for  which they                                                               
could potentially be prosecuted.                                                                                                
MR. STARK  restated that  it potentially  subjects the  person to                                                               
prosecution  under this  statute and  the proposal  is to  remove                                                               
parole so it doesn't cover that kind of behavior for parolees.                                                                  
SENATOR  WIELECHOWSKI asked  if  making this  change removes  the                                                               
potential  for criminal  violation,  but the  person could  still                                                               
have their parole or probation revoked.                                                                                         
MR. STARK said yes, and it  would increase the ability to monitor                                                               
these people when they're on the street.                                                                                        
CHAIR FRENCH  remarked that when someone  violates probation they                                                               
go  back  to jail  for  a  probation  violation  and now  it's  a                                                               
subsequent stand-alone crime.                                                                                                   
MR. SVOBODNY explained that in  2006 penalties were substantially                                                               
increased for sex  offenses including the ability  to put someone                                                               
on probation up to 25 years.  What was envisioned is what happens                                                               
if  someone receives  a 50-year  sentence for  a sex  offense; 10                                                               
years are  suspended and the  person is  put on probation  for 25                                                               
years. The person  either flat times the sentence or  gets out on                                                               
probation and gets revoked so he  or she has served the total 50-                                                               
year sentence yet they still  have 25 years probation that didn't                                                               
go  away under  the  2006 change  in law.  The  question is  what                                                               
sanction keeps the person in sex offender treatment.                                                                            
CHAIR FRENCH observed  that this is aimed at the  folks that have                                                               
no more suspended time hanging over their heads.                                                                                
MR. SVOBODNY agreed.                                                                                                            
CHAIR  FRENCH added  that most  parolees have  suspended time  in                                                               
addition to their  parole time. A flat 6-year sentence  for a sex                                                               
crime is rare; a 10 year  sentence with 4 years suspended is more                                                               
MR. SVOBODNY agreed.                                                                                                            
CHAIR FRENCH found no further questions on Sections 1 and 2.                                                                    
2:26:18 PM                                                                                                                    
DEREK DEGRAAF, Sergeant, Technical  Crimes Unit, Alaska Bureau of                                                               
Investigation,  Alaska  State   Troopers,  Department  of  Public                                                               
Safety,  said  the unit  he  supervises  is  part of  the  Alaska                                                               
Internet  Crimes  against Children  Task  Force.  This unit  also                                                               
processes most  of the evidence seized  statewide from electronic                                                               
devices like computers, cell phones, and digital cameras.                                                                       
CHAIR FRENCH  asked Mr. Svobodny  to tell the committee  what the                                                               
relevant bill  sections do and  Sergeant DeGraaf can  explain how                                                               
it will work on the ground.                                                                                                     
MR. SVOBODNY directed  attention to page 3, line  20, Sections 5,                                                               
6, and 7. Recently the Alaska  Court of Appeals decided Worden v.                                                               
State where  a person was  convicted of having  child pornography                                                               
in their computer  cache memory. The question was  did the person                                                               
only  view child  pornography on  their computer  or did  they do                                                               
something to  store it.  According to  the court,  "cache memory"                                                               
did  not indicate  that the  person  had exercised  some type  of                                                               
dominion or control  over the child pornography.  This brought to                                                               
light   that  the   Alaska  statute   for  possession   of  child                                                               
pornography on a  computer requires more than  simple viewing; it                                                               
requires exercising some type of dominion or control.                                                                           
The proposed  changes track  federal law where  it is  illegal to                                                               
possess  child pornography  and to  view child  pornography on  a                                                               
computer. The  bill also allows  for an affirmative defense  if a                                                               
person  unintentionally downloads  child  pornography, less  than                                                               
three times.                                                                                                                    
2:29:50 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if opening  child pornography  in an                                                               
email would constitute knowingly possessing.                                                                                    
MR. SVOBODNY replied that would  be neither. Furthermore, Section                                                               
7 provides  an affirmative  defense if  the child  pornography is                                                               
SENATOR  WIELECHOWSKI reviewed  Section 7  and observed  that you                                                               
lose  that protection  if  the email  with  child pornography  is                                                               
opened more than three times.                                                                                                   
MR. SVOBODNY restated that this is  modeled on federal law. He is                                                               
not aware  that there is  anything magic about the  number three,                                                               
but at some point it's no longer an accident.                                                                                   
2:31:37 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said he  understands  the  intent, but  he                                                               
wants to  make sure  that innocent people  are protected  if they                                                               
get  viruses  on their  computers  that  contain pornography.  He                                                               
asked  if  this  bill  contains  adequate  protections  for  that                                                               
MR.  SVOBODNY   suggested  that  Sergeant  DeGraaf   provide  his                                                               
perspective, but  in this state  a complete forensic  analysis is                                                               
done before anyone is prosecuted.                                                                                               
2:32:54 PM                                                                                                                    
SERGEANT  DEGRAAF  reported  that  in law  enforcement  the  most                                                               
common scenario is that  someone purposefully downloaded peer-to-                                                               
peer file sharing software like  LimeWire. This is the number one                                                               
way that  child pornography is  shared throughout the  world. Law                                                               
enforcement  can  download  the   child  pornography  from  these                                                               
individuals,  which gives  probable  cause for  an interview  and                                                               
potentially to  seize their  computers. An  example of  the other                                                               
scenario is  when a student  tells a school councilor  that their                                                               
mom's boyfriend has been showing  them horrible photos and movies                                                               
on the  computer. Law  enforcement can  then interview  the child                                                               
and visit the home to develop probable cause.                                                                                   
SERGEANT  DEGRAAF related  that  his unit  investigates cases  of                                                               
child pornography  that involve  file sharing pictures  or movies                                                               
that are sexually explicit and  involve prepubescent children. As                                                               
a  forensic computer  examiner it  is fairly  easy to  figure out                                                               
whether   someone  was   purposefully  searching,   logging  into                                                               
websites,  or paying  for online  memberships  to download  child                                                               
pornography, he said.                                                                                                           
The loophole that  currently exists allows someone  to view child                                                               
pornography  through   their  browser  so  long   as  they  don't                                                               
purposefully save  the images to  their hard drive. We've  had to                                                               
walk  away from  some of  those cases  here in  Alaska, he  said.                                                               
Whether those individuals  are more or less  dangerous than those                                                               
who save the  images is not for  me to say, he  said, but studies                                                               
show that  20-80 percent of  people that collect these  images or                                                               
movies  will offend  or already  have offended  on a  child. This                                                               
bill gives the law more teeth.                                                                                                  
2:37:56 PM                                                                                                                    
SENATOR MCGUIRE asked if the law  that allows the seizure of hard                                                               
drives in these cases needs to be expanded.                                                                                     
SERGEANT  DEGRAAF  replied  they  have  had  no  problem  seizing                                                               
computers;  the  technology they  use  is  the very  best  that's                                                               
SENATOR  COGHILL asked  if the  issue with  caching is  that when                                                               
someone views an  image it is loaded onto  their computer without                                                               
their purposefully saving it.                                                                                                   
SERGEANT DEGRAAF said that's correct.                                                                                           
SENATOR COGHILL  recalled that a cybercrime  presentation several                                                               
years  ago highlighted  that  resources  to investigate  Internet                                                               
crimes in Alaska  were inadequate. He asked if  the situation has                                                               
SERGEANT DEGRAAF  said that House  legislation several  years ago                                                               
provided funding for a cybercrime  investigator and a technician.                                                               
The positions  were filled  and as a  result the  cybercrime unit                                                               
has  been able  to double  the cases  it pursues.  Certainly they                                                               
could  do more  with increased  resources, but  the Flint  Waters                                                               
training  and technology  that's been  implemented has  been very                                                               
2:41:42 PM                                                                                                                    
SENATOR COGHILL  described the Flint Waters  demonstration as the                                                               
most sobering that he's seen in his tenure in the Legislature.                                                                  
CHAIR FRENCH  reviewed page 3,  line 22, and asked  how confident                                                               
they  can  be  that  the  courts  will  interpret  "accesses"  as                                                               
SERGEANT DEGRAAF replied  this is the best language  so far; it's                                                               
also the language that the federal government adopted.                                                                          
CHAIR FRENCH asked  if in his area of  expertise "accesses" means                                                               
looked at on a computer.                                                                                                        
SERGEANT DEGRAAF said yes.                                                                                                      
2:44:38 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  about  replacing   "accesses  with                                                               
MR. SVOBODNY pointed out that  the Ninth Circuit Court of Appeals                                                               
likes the word accesses in this case.                                                                                           
SERGEANT  DEGRAAF  restated  that this  language  models  federal                                                               
language and  although it  could change in  the future,  it's the                                                               
best right now.                                                                                                                 
CHAIR FRENCH  mused that you must  prove "knowing" and it  may be                                                               
easier to  prove that  someone accessed the  site than  that they                                                               
viewed it.                                                                                                                      
SERGEANT DEGRAAF related that both  Microsoft and Apple operating                                                               
systems  use  "access  date" in  their  file  attributes.  Access                                                               
doesn't necessarily  mean viewed; it  means it was pulled  into a                                                               
program to be viewed, manipulated, sent or emailed.                                                                             
CHAIR FRENCH said the committee may insert "or viewed."                                                                         
SENATOR  WIELECHOWSKI  added  that  people  who  regularly  stand                                                               
around  and  watch as  someone  else  accesses child  pornography                                                               
aren't prosecutable under this bill.                                                                                            
SERGEANT  DEGRAAF   said  the  two  words   "knowingly  accesses"                                                               
together is the strongest language that's available right now.                                                                  
2:48:51 PM                                                                                                                    
SENATOR  COGHILL asked  if "access"  covers something  running in                                                               
the  background  without  your knowledge,  or  if  someone  could                                                               
access your computer while you're online.                                                                                       
SERGEANT  DEGRAAF acknowledged  that  is a  possibility, but  the                                                               
occurrence  is  rare.  A   thorough  forensic  examination  would                                                               
uncover what was going on.                                                                                                      
2:51:11 PM                                                                                                                    
MR.  SVOBODNY  suggested  the   committee  review  Sections  8-10                                                               
starting  on page  4, line  12.  Subsequent to  the Flint  Waters                                                               
demonstration  the Legislature  made  it a  crime  to send  child                                                               
pornography to a child over the Internet.                                                                                       
CHAIR FRENCH  called a point of  order; Section 8 does  not refer                                                               
to child pornography.                                                                                                           
MR.  SVOBODNY agreed.  The Legislature  made it  a crime  to send                                                               
adult pornography to children by  computer, but they forgot about                                                               
distribution of  pornography to children  using any  other means.                                                               
This  bill  would  clarify  that  it  is  illegal  to  distribute                                                               
pornography to a child by any means.                                                                                            
CHAIR FRENCH asked  if that isn't covered by  contributing to the                                                               
delinquency of a minor.                                                                                                         
MR. SVOBODNY replied it might  be, but this is substantially more                                                               
dangerous  conduct  than contributing  to  the  delinquency of  a                                                               
CHAIR  FRENCH observed  that this  statute  [AS 11.61.128(a)]  is                                                               
aimed  at the  real world  more than  cyber world.  It's grooming                                                               
children for sex offenses by showing them pornography.                                                                          
MR. SVOBODNY surmised that it  happens more in Sergeant DeGraaf's                                                               
2:54:16 PM                                                                                                                    
SENATOR  WIELECHOWSKI noted  that page  3, line  15, specifically                                                               
references "a person,  being 18 years of age or  older" and asked                                                               
if Alaska  law addresses a  17-year-old sending a  lewd depiction                                                               
to another 17-year-old.                                                                                                         
MR. SVOBODNY said  he'd look at that issue again,  but he recalls                                                               
that DOL prevailed in the past  when it argued that juveniles who                                                               
were offenders  were covered  under the sexual  abuse of  a minor                                                               
CHAIR FRENCH asked  if it's true that it's never  been a crime in                                                               
Alaska to groom a child by showing them pornography.                                                                            
MR. SVOBODNY said he believes that's correct.                                                                                   
CHAIR FRENCH asked if the level of offense is a class C felony.                                                                 
MR.  SVOBODNY agreed  it is  a class  C felony;  page 8,  line 1,                                                               
makes  a  change  in  criminal Rule  16.  The  proposed  language                                                               
matches  federal law  and further  restricts the  distribution of                                                               
child  pornography   by  disallowing   any  duplication   of  the                                                               
prohibited material.  This does  not mean  the defense  is denied                                                               
access  to  or use  of  the  material.  His  concern is  that  in                                                               
providing discovery  to the defense  attorney that the DVD  or CD                                                               
might wind  up being viewed by  many other people. That  might or                                                               
might not have  happened with child pornography,  but other types                                                               
of disturbing pictures have been  widely distributed. "When we're                                                               
dealing with  child pornography, we want  to control distribution                                                               
as much as possible," he said.                                                                                                  
2:59:06 PM                                                                                                                    
CHAIR FRENCH asked Mr. Steiner his view on this point.                                                                          
MR.  STEINER said  the public  defender  agency doesn't  disclose                                                               
those types of  images and they don't provide  copies to clients.                                                               
On  occasion they  need to  be viewed  by a  client or  a defense                                                               
expert  and generally  there  are agreements  with  the state  to                                                               
transfer that material to an  expert. He agreed with Mr. Svobodny                                                               
that the  PDA tends  not take possession  of the  material unless                                                               
there is  a case-specific  reason. He pointed  out that  an issue                                                               
that  might come  up  is  the expense  related  to the  discovery                                                               
limitation. In  cases covered by AS  41.04.55 the PDA has  to fly                                                               
experts and their  equipment to wherever the state  wants them to                                                               
work,  which can  be relatively  expensive.  Also, these  experts                                                               
tend to be from out of state.                                                                                                   
CHAIR FRENCH thanked  Sergeant DeGraaf for his work  and help. He                                                               
held SB 222 in committee.                                                                                                       

Document Name Date/Time Subjects
HB 98 Info.pdf SJUD 1/25/2010 1:30:00 PM
HB 98