Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/15/2010 01:30 PM Senate JUDICIARY

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        SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING                                                                    
1:55:47 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 222. He asked Mr.                                                               
Svobodny to  continue the  sectional analysis  he started  at the                                                               
previous  hearing,  beginning  with  Section  8.  He  noted  that                                                               
bookstores  have  contacted him  to  explain  how this  provision                                                               
would work.                                                                                                                     
RICK  SVOBODNY, Deputy  Attorney  General,  Alaska Department  of                                                               
Law, said  Section 8 expands  a present provision  that prohibits                                                               
electronic  distribution  of  indecent   material  to  minors  to                                                               
prohibit any  distribution of indecent  material to  minors. It's                                                               
more  than  just  through  the  Internet.  With  respect  to  the                                                               
concerns articulated  about determining  a person's age,  he said                                                               
that  the state  has  to prove  two elements  -  that the  person                                                               
knowingly distributed and  that they were reckless as  to the age                                                               
of  the  victim. It's  obvious  if  a  person  is 12  if  they're                                                               
standing at the  counter versus mailing something  to an address,                                                               
he said.                                                                                                                        
1:58:43 PM                                                                                                                    
CHAIR  FRENCH asked  if he  thinks that  the prohibited  material                                                               
described on page 4, lines 18-25 would be pictures or words.                                                                    
MR.  SVOBODNY replied  the items  that are  listed come  from the                                                               
statute  prohibiting child  exploitation.  AS 11.41.455  requires                                                               
somebody to  create a  picture or  a live  sex show  for somebody                                                               
under  age  16.   He  noted  that  the   Criminal  Code  Revision                                                               
Commission  recommended including  these things  under the  child                                                               
exploitation statute and it's been the law since 1980.                                                                          
CHAIR  FRENCH clarified  that it  is pictures  or movies  or live                                                               
shows, not words written in a book.                                                                                             
MR. SVOBODNY agreed.                                                                                                            
CHAIR FRENCH  noted that the  statute has the word  "depicts" and                                                               
asked if it would  be clearer if it were limited  to the sorts of                                                               
things just discussed with respect  to unlawful exploitation of a                                                               
MR. SVOBODNY replied that was  the initial intent and he believes                                                               
it would be clearer.                                                                                                            
CHAIR FRENCH said  they'd take the language and make  it as clear                                                               
as possible. It may not  eliminate First Amendment and bookseller                                                               
concerns, but it's a good start.                                                                                                
2:01:45 PM                                                                                                                    
MR.  SVOBODNY said  he doesn't  believe that  since 1980  there's                                                               
been  a  prosecution  in  this  state  for  distributing  written                                                               
material under the provisions in Title 11.41 or 11.61.                                                                          
SENATOR FRENCH  asked his reaction  to the suggestion to  put the                                                               
Miller test language into the bill.                                                                                             
MR.  SVOBODNY  replied his  concern  is  that  it could  be  very                                                               
difficult to meet  the additional elements that are  added to the                                                               
SENATOR  WIELECHOWSKI  commented  that  prosecutorial  discretion                                                               
could account for the fact  that nobody has been prosecuted under                                                               
this statute since 1980. He  shares the concerns about protecting                                                               
First Amendment  rights and prefers to  err on the side  of being                                                               
more explicit, not less.                                                                                                        
CHAIR FRENCH  said the committee would  look at it once  the more                                                               
descriptive language is inserted.                                                                                               
SENATOR COGHILL asked if the Miller language is in the packet.                                                                  
CHAIR FRENCH relayed  that the language says,  "that the material                                                               
lacks serious literary, artistic,  political, or scientific value                                                               
and that depicts the following actual or simulated conduct."                                                                    
SENATOR COGHILL  opined that removing the  word "electronic" from                                                               
Section  8 made  it  clearer and  inserting  the Miller  language                                                               
would make it  less so. "Every time  you add a word  to statute …                                                               
that's one more word you get to argue over what the meaning is."                                                                
CHAIR FRENCH agreed.                                                                                                            
MR.  SVOBODNY  clarified  that  since 1980  when  that  list  was                                                               
enacted there  hasn't been a  prosecution of a  book distributor.                                                               
He further  explained that the  section is intended to  deal with                                                               
the situation  of a  person who  is grooming  a child  by showing                                                               
them sexually explicit  material in person as opposed  to it over                                                               
the Internet.                                                                                                                   
2:06:46 PM                                                                                                                    
SENATOR COGHILL  said he understands  that but removing  the word                                                               
"electronic" broadens the question.                                                                                             
CHAIR FRENCH agreed it's far broader.                                                                                           
SENATOR   WIELECHOWSKI   asked   if   a   bookseller   "knowingly                                                               
distributes" if  they put a picture  book on the shelf  that they                                                               
believe has value  under the Miller test and they  know that kids                                                               
go there.                                                                                                                       
MR. SVOBODNY said the culpable  state is to knowingly distribute,                                                               
which is to  move from one person to another.  A different catch-                                                               
all  statute says  there's an  additional  culpable mental  state                                                               
regarding  a  child's age  and  that's  reckless. The  bookseller                                                               
would  have  to be  reckless  in  that  the person  that  they're                                                               
distributing  to  is  under  16  years  of  age.  He  added  that                                                               
recklessly is  "a gross  deviation from  the standard  of conduct                                                               
that a reasonable person would use under the circumstance."                                                                     
SENATOR  WIELECHOWSKI  asked if  bookstores  will  have to  start                                                               
carding customers  that buy  certain books  to make  sure they're                                                               
over a certain age.                                                                                                             
MR. SVOBODNY replied  it's up to a jury to  determine whether the                                                               
conduct is  a gross  deviation from the  standard of  conduct. He                                                               
can't say  what juries  would decide  is reasonable  for somebody                                                               
who  is distributing  pictures of  people  under age  18 who  are                                                               
engaged in  sexual activity  or any  of the  other things  in the                                                               
list.  It's not  simply a  list of  children that  are unclothed;                                                               
it's specific acts, he said.                                                                                                    
CHAIR FRENCH  reported that the  House judiciary  committee added                                                               
the Miller language.                                                                                                            
2:09:38 PM                                                                                                                    
MR. SVOBODNY said Sections 9  and 10 are conforming amendments to                                                               
strike  the word  "electronic."  Section 11  adds  the crimes  of                                                               
human   trafficking,   distribution   or  possession   of   child                                                               
pornography, and  distribution of indecent material  to minors to                                                               
the  group of  offenses  for which  a person  may  not receive  a                                                               
suspended  imposition sentence.  This  is when  a  court makes  a                                                               
determination  to  hold  off  on   imposing  a  sentence  on  the                                                               
condition that the person does certain  things. At the end of the                                                               
suspended  imposition the  person may  apply to  the court  for a                                                               
certificate  of   discharge  saying   they  have   completed  the                                                               
suspended imposition of sentence.                                                                                               
CHAIR  FRENCH noted  that  the new  statutory  references are  AS                                                               
11.41.360 - 11.41.370 and AS 11.61.125 - 11.61.128.                                                                             
2:12:00 PM                                                                                                                    
MR. SVOBODNY  said that  Section 12  describes the  conditions of                                                               
probation that  a court may  impose. DOL believes that  the court                                                               
already has the authority, but  this specifically gives the court                                                               
discretion to  order a person  to give their Internet  address to                                                               
his  or  her  probation  officer,   to  prohibit  a  person  from                                                               
establishing Internet  sites that  are directed  toward children,                                                               
and to restrict a person  from having contact with children under                                                               
age 18.                                                                                                                         
CHAIR FRENCH observed  that many of these  conditions are already                                                               
scattered throughout  the statutes. He asked  if there's anything                                                               
new or if this simply puts the court powers in one place.                                                                       
MR.  SVOBODNY replied  he  believes the  court  already has  this                                                               
authority  when there's  a nexus  between the  offender's conduct                                                               
and the  condition that the  court has imposed, but  it's spelled                                                               
out  - as  is  the condition  about  communicating with  children                                                               
under  age  [16]. This  section  also  adds information  about  a                                                               
probation officer obtaining email  addresses and requiring the PO                                                               
to give the information to the Alaska State Troopers.                                                                           
MR. SVOBODNY  said Section  13 amends  the aggravating  factor at                                                               
sentencing to  allow the court  to increase a sentence  above the                                                               
sentencing  range  if   the  jury  finds  that   the  victim  was                                                               
particularly vulnerable. Being under  the influence of alcohol or                                                               
drugs are  added factors  that might  make a  person particularly                                                               
vulnerable. He  noted that Dr.  Andre Rosay with the  UAA Justice                                                               
Center  reported  to  this committee  the  staggering  amount  of                                                               
sexual  abuse of  a  minor cases  when the  child  was under  the                                                               
influence of  alcohol. That was  the genesis of  this aggravating                                                               
factor, he said.                                                                                                                
2:17:04 PM                                                                                                                    
Section 14 adds  two new aggravating factors in  crimes against a                                                               
person in  AS 11.41.  The first  allows the  court to  increase a                                                               
sentence above the  sentencing range if the  defendant was dating                                                               
or had  engaged in  a sexual relationship  with the  victim. This                                                               
goes to  the vulnerability  of the victims  to those  crimes. The                                                               
second  allows the  court  to increase  the  sentence for  sexual                                                               
abuse of a  minor in the second degree when  the defendant is age                                                               
18 or older.  He noted that DOL recommended that  the House amend                                                               
its bill to a 10-year age  difference. The notion is that someone                                                               
who is  13 is more  likely to be  taken advantage of  by somebody                                                               
who is 25 than by somebody who is 17.                                                                                           
CHAIR FRENCH asked what ages  are specified in AS 11.41.436(a)(2)                                                               
making it a crime for somebody to have sex with another.                                                                        
MR. SVOBODNY  replied a person 16  years of age or  older commits                                                               
sexual abuse of  a minor if they engage in  sexual contact with a                                                               
person who is under 13 years of age.                                                                                            
MR.  SVOBODNY  continued  to  say  that Section  15  adds  a  new                                                               
provision  to Alaska's  sex offender  registration law.  A person                                                               
who  is required  to register  in another  state or  jurisdiction                                                               
would have to register if they  came to this state even if Alaska                                                               
does not have a matching sex-based crime.                                                                                       
He  elaborated that  Alaska has  a  tiered system  under which  a                                                               
person is  required to register for  either 15 years or  for life                                                               
depending  on the  type  of  offense and  if  they  are a  repeat                                                               
offender.  Other   states  have   chosen  to  use   a  risk-based                                                               
assessment under  which a  person could  be required  to register                                                               
even though they had not been  convicted of a sex-based crime. In                                                               
Minnesota,  for example,  a person  who entered  a home  with the                                                               
intent to  rape somebody may  be convicted of burglary,  but they                                                               
would still go through the  assessment for a determination on how                                                               
long they had to register as  a sex offender. If that person were                                                               
to  move to  Alaska,  they  would not  currently  be required  to                                                               
register because they  had been convicted of burglary,  not a sex                                                               
offense. Likewise,  making bodily contact  with a minor  with the                                                               
intention of  arousing one's  sexual desires is  a crime  of lewd                                                               
and lascivious acts on a minor in many states, but not Alaska.                                                                  
MR. SVOBODNY  highlighted that according to  testimony in another                                                               
committee, the Alaska State Troopers  receive between 300 and 500                                                               
calls per month  from sex offenders in other  states asking about                                                               
sex  offender registration  in this  state. Approximately  150 of                                                               
those calls are  from people asking if they would  be required to                                                               
register if they were to move  to Alaska. This new provision is a                                                               
way of saying they would need to register.                                                                                      
2:23:40 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if there are  equal protection issues                                                               
with a  law like  this because  a certain act  that's a  crime in                                                               
another state might not be a crime at all in this state.                                                                        
MR.  SVOBODNY replied  he  doesn't  know of  any  because it's  a                                                               
regulatory  rather than  criminal  matter when  someone comes  to                                                               
Alaska after  having been  convicted in  another state.  He added                                                               
that he  recognizes that  the U.S. Supreme  Court and  the Alaska                                                               
Supreme Court  differed when  they talked  about the  expos facto                                                               
nature of this law. The U.S.  Supreme Court found that the Alaska                                                               
law was  regulatory while  the Alaska Supreme  Court said  it's a                                                               
punishment.  He  opined that  when  you're  talking about  people                                                               
coming to this state it seems  that it's regulatory. A person who                                                               
commits a felony  crime in another state would be  unable to come                                                               
to Alaska and possess a handgun  because they would be a felon in                                                               
possession of  a handgun,  even though Alaska  might not  have an                                                               
analogous felony crime.                                                                                                         
CHAIR FRENCH cited an example from  an ACLU memo. Someone who was                                                               
convicted  in another  state  of having  sex  with a  17-year-old                                                               
would be required to register if  they came to Alaska even though                                                               
the age of  consent in this state is 16.  Under this provision if                                                               
that person  comes to Alaska  they would be required  to register                                                               
as a  sex offender for  15 years for  an act that  Alaska doesn't                                                               
recognize as a crime.                                                                                                           
MR.  SVOBODNY  agreed.  He  added  that the  age  of  consent  in                                                               
California, which may  or may not be a risk  assessment state, is                                                               
17 so someone  who is required to register  there wouldn't escape                                                               
that requirement by moving to Alaska.                                                                                           
2:26:53 PM                                                                                                                    
CHAIR FRENCH  said the risk  assessment is intriguing  because it                                                               
implies  that  someone  in  law enforcement  has  probed  into  a                                                               
person's  background  to come  up  with  a  reason to  make  them                                                               
register.  Presumably  it's  a good  reason  that's  designed  to                                                               
protect the  public. He asked if  there's more to being  a tiered                                                               
state than  that a  person is classified  by their  conviction on                                                               
certain crimes.                                                                                                                 
MR. SVOBODNY  replied tiered  states are more  general as  to the                                                               
conduct  that  would  require  a  person to  register  as  a  sex                                                               
offender   than   risk-assessment   states.  Generally   a   risk                                                               
assessment hearing comes before  an administrative law judge. The                                                               
state  argues why  it thinks  the person's  conduct warrants  the                                                               
requirement to  register as a  sex offender for a  certain period                                                               
of time.  The offender  makes the opposite  argument and  then an                                                               
administrative decision is made.  He noted the federal government                                                               
is  trying to  drive  all states  to have  a  similar system.  He                                                               
understands that  the risk-assessment system was  considered when                                                               
the  Sex  Offender  Registration   Act  first  passed  but  given                                                               
Alaska's geography, the decision was to go to a tiered system.                                                                  
CHAIR  FRENCH stated  that before  the next  hearing he  wants to                                                               
look at  which states have  the risk-assessment system  and learn                                                               
how it  works. Certainly we don't  want people to move  here just                                                               
because  they   wouldn't  be  required  to   register,  but  it's                                                               
troubling to  think that  someone could  be put  in jail  for not                                                               
registering  for an  act that  isn't a  crime in  this state,  he                                                               
2:30:10 PM                                                                                                                    
SENATOR WIELECHOWSKI asked how the current system works.                                                                        
MR.  SVOBODNY explained  that  if  the out  of  state person  has                                                               
committed  an offense  that  has similar  elements  to an  Alaska                                                               
offense,  an   administrative  determination   is  made   by  the                                                               
Department of  Public Safety as to  whether the person is  Tier 1                                                               
and has to  register for 15 years  or Tier 2 and  has to register                                                               
of life.  There is  the ability for  an administrative  appeal of                                                               
that  decision to  appear in  superior court  and argue  that the                                                               
administrative decision  was wrong.  The problem  is when  it's a                                                               
clear  sex offense  in other  states,  but the  elements are  not                                                               
analogous to any law in this  state. For example, in the military                                                               
a person  who commits a  rape may be court-martialed  for conduct                                                               
unbecoming the  military. The  person committed  a rape  but they                                                               
wouldn't be captured under current  law as somebody who should be                                                               
required to register a sex offender.                                                                                            
2:32:07 PM                                                                                                                    
CHAIR FRENCH  called a point of  order to ask if  a court-martial                                                               
for rape would  require the person to register as  a sex offender                                                               
in  that state.  He  further  asked if  there  is  a federal  sex                                                               
offender registry.                                                                                                              
MR.  SVOBODNY said  yes and  he believes  that Title  18 includes                                                               
other jurisdictions  - territories and the  federal government so                                                               
if there's a  military conviction on Elmendorf,  for example, the                                                               
person   may  evade   the   Alaska   sex  offender   registration                                                               
CHAIR FRENCH  observed that the committee  needs more information                                                               
on that.                                                                                                                        
SENATOR WIELECHOWSKI  asked if there is  a list of the  major sex                                                               
offenses  that  people commit  in  other  states for  which  they                                                               
aren't required  to register  when they come  to Alaska.  I don't                                                               
object  to increasing  the registry  but I  don't want  to punish                                                               
people for  doing things  that we've made  a conscious  policy to                                                               
say are okay, he said.                                                                                                          
2:34:13 PM                                                                                                                    
CHAIR  FRENCH  asked  Ms.  Monfreda  what  issue  comes  up  most                                                               
frequently  when  people from  other  states  call to  ask  about                                                               
Alaska's sex offender registration requirements.                                                                                
KATHRYN  MONFREDA,  Chief,  Criminal Records  and  Identification                                                               
Bureau,  Division of  Statewide  Services,  Department of  Public                                                               
Safety (DPS), said  her duties include managing  the sex offender                                                               
registry. She confirmed that her  office receives about 150 calls                                                               
per month from  offenders, mostly inquiring about  whether or not                                                               
they  must  register.  Some  of the  calls  come  from  juveniles                                                               
because  unlike  Alaska,  several  states  require  juveniles  to                                                               
register. She agreed  with Mr. Svobodny that  it's challenging to                                                               
make  a determination  about registering  when  someone has  been                                                               
convicted of a military crime.  Other questions relate to whether                                                               
someone must register if the  crime for which they were convicted                                                               
isn't listed as a sex  offense in Alaska. Electronic distribution                                                               
and  online  enticement  are examples  of  convictions  in  other                                                               
states that haven't required registration here, she said.                                                                       
CHAIR FRENCH reviewed the new  subparagraph (D) in Section 15 and                                                               
observed that this would make her life easier.                                                                                  
MS. MONFREDA said  it's not that simple because  her office would                                                               
still   need  to   make  determinations   about  the   length  of                                                               
registration;  about  whether  someone  had  been  exempted  from                                                               
registering  because of  risk assessments,  which Alaska  doesn't                                                               
have;  and  about  whether  other  states  have  a  provision  to                                                               
lengthen  registration  time  for  noncompliance.  Another  issue                                                               
relates  to tracking  compliance if  a person  is convicted  of a                                                               
crime  in one  state  and  later moves  to  another state  before                                                               
moving to  Alaska. This  information can  be difficult  to gather                                                               
because some  state registries aren't  interested in  tracking an                                                               
offender after they move from the state.                                                                                        
2:38:48 PM                                                                                                                    
MR. SVOBODNY pointed out that  a problem with the proposed change                                                               
is that  it doesn't talk  about tiers.  DOL has some  language to                                                               
address that omission, he said.                                                                                                 
CHAIR FRENCH  said the committee  looks forward to  receiving the                                                               
MR. SVOBODNY continued  to say that the new  provision in Section                                                               
16  is  part  of  the  federal law,  which  requires  that  child                                                               
pornography that  has been collected  must remain in  the custody                                                               
of  the  law enforcement  agency  and  the prosecuting  attorney.                                                               
Discovery will not be limited but  the material may not be copied                                                               
by  the defense  or anybody  else. The  idea is  to make  it less                                                               
likely that  the material would  be distributed or that  it would                                                               
get back  into the  hands of  the offender,  both of  which would                                                               
revictimize the child.                                                                                                          
CHAIR  FRENCH mentioned  a  memo that  cites  a Washington  State                                                               
child  pornography conviction  that  was  overturned because  the                                                               
defense  was not  able to  view the  evidence except  at a  state                                                               
facility. He hasn't read the case.                                                                                              
MR.  SVOBODNY said  he hasn't  read the  case either  but he  was                                                               
troubled that the  court was reported to have  said that [viewing                                                               
the evidence] could have been  accomplished with better firewalls                                                               
because  that sounds  like the  material  would go  out over  the                                                               
Internet again.                                                                                                                 
CHAIR  FRENCH  said he's  flagging  that  as  a concern,  but  he                                                               
recalls that  Mr. Steiner wasn't  particularly worried  about the                                                               
provision.  He  did highlight  a  concern  about the  expense  of                                                               
moving experts  to and  from the location  where the  material is                                                               
QUINLAN STEINER, Public Defender,  Public Defender Agency, Alaska                                                               
Department of  Administration, agreed that the  expense of moving                                                               
experts would definitely  be a concern. The way  that the statute                                                               
is  interpreted  and the  way  that  access  to the  evidence  is                                                               
granted  could also  raise constitutional  concerns, he  said. It                                                               
would definitely  raise a concern  if someone from  public safety                                                               
is  required to  be in  the room  when the  defense council,  the                                                               
experts,  and  the defendant  are  discussing  the material.  The                                                               
statute doesn't speak to that specifically.                                                                                     
CHAIR FRENCH asked if his concern  centers on the extent to which                                                               
custody and control is taken.                                                                                                   
MR.  STEINER  said   yes  because  this  rule   change  could  be                                                               
interpreted in a wide variety of ways.                                                                                          
2:44:24 PM                                                                                                                    
JEFFERY  MITTMAN, Executive  Director,  ACLU of  Alaska, said  he                                                               
believes  that  the committee  questions  addressed  many of  the                                                               
issues that the  ACLU is concerned about. He noted  that the ACLU                                                               
does support  including a  Miller test  to avoid  potential First                                                               
Amendment  issues.  The  other issue  relates  to  the  potential                                                               
constitutional  problems with  the  right to  a defense.  Clearly                                                               
having the material  in the control and custody of  the state and                                                               
the prosecution  is a significant  impediment to  defense issues,                                                               
he  said. He  cited the  Murtagh case  and noted  that the  state                                                               
supreme  court  ultimately  ruled  in favor  of  the  defendant's                                                               
rights  to  a  full  defense.  He urged  the  committee  to  look                                                               
carefully  at  the language  to  more  appropriately balance  the                                                               
2:46:24 PM                                                                                                                    
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
SB 222 in committee.                                                                                                            

Document Name Date/Time Subjects
SB222 letter.pdf SJUD 2/15/2010 1:30:00 PM
SB 222
SB222 Sectional Analysis.pdf SJUD 2/15/2010 1:30:00 PM
SB 222