Legislature(2009 - 2010)BUTROVICH 205
04/05/2010 11:00 AM Senate JUDICIARY
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* first hearing in first committee of referral
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SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING CHAIR FRENCH announced the consideration of SB 222. 11:58:23 AM JERRY LUCKHAUPT, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, related that he was directed to prepare a CS for SB 222 based on the House judiciary CS for HB 298. Basically, 90 percent of this CS comes from that House bill, he said. Sections 1 and 2 are the same as the House bill and Section 3 is slightly different. CHAIR FRENCH noted that the change in Section 3 occurs on line 20. Since the crime is committed through clothing, the word "anus" was changed to "buttocks." MR. LUCKHAUPT agreed and said DOL suggested the change. CHAIR FRENCH asked if it's too simplistic to say it's a misdemeanor to touch somebody through clothing and it's a felony to touch the skin, depending on the location. MR. LUCKHAUPT explained that DOL said this statute was needed because people were acting spontaneously. For example, someone in a bar might spontaneously grab a woman's breast and she would have no opportunity to say "No." to the contact before it occurred. That would apply whether it was through clothing or not. He said if DOL's interpretation is correct, then there's still a slight loophole. If the lack of consent cannot be communicated directly, then it would still apply to situations where the breast is touched directly, and not through clothing. CINDY SMITH, Chief of Staff to Senator French, put herself on the record. 12:01:10 PM MR. LUCKHAUPT said Sections 4 and 6 are the same as the House version. Section 5 is slightly different because it does not contain any of the language dealing with anime pornography that the House Judiciary Committee adopted. CHAIR FRENCH read the language on lines 6-8 in Section 5 and asked what that is if it's not anime. MR. LUCKHAUPT hypothetically described it as someone taking Miley Cyrus's face and projecting it on someone's nude body. He continued to explain that federal law and most state laws consider it child pornography to superimpose the face of a real child on someone else's body for the purpose of achieving sexual gratification. CHAIR FRENCH asked if superimposing an adult's face on a 12- year-old child's body would be a crime under this bill. MR. LUCKHAUPT replied "That would also count there too." CHAIR FRENCH asked if it would be a crime if an adult body had an 8-year-old's face superimposed. MR. LUCKHAUPT answered yes. 12:04:24 PM SENATOR WIELECHOWSKI asked if it would be a crime under this bill to take Miley Cyrus's foot and superimpose it on a 35-year- old woman's body. MR. LUCKHAUPT replied, "Theoretically it could be - if you could identify that foot as Miley Cyrus's as an actual child's foot." CHAIR FRENCH asked if there wouldn't have to be conduct that is described in AS 11.41.455. MR. LUCKHAUPT said he was assuming that the foot would be attached to a nude body or a pornographic image. SENATOR WIELECHOWSKI asked whose state of mind it is - the person superimposing the foot on the body or the person that's viewing the foot. MR. LUCKHAUPT replied there are provisions that provide that you don't have to prove the actual identity of any particular child, but in some cases you know the child is somewhat famous. In some situations identification may be easy, but in others the state may not be able to prove that it's a specific child and that it constitutes child pornography. SENATOR COGHILL mentioned the cybercrime's unit and noted that it's clear that many people are engaging in illegal behavior, but it's the most egregious that need to be caught first. CHAIR FRENCH said that was his concern about anime. While it's wrong and something people shouldn't be watching, it's not time to bring a new offensive when so much evidence is not addressed now. MR. LUCKHAUPT said the U.S. Supreme Court ruled that you can criminalize the cartoon depictions, but a finding that it's obscene has to be included. Because of that secondary requirement, there have been very few prosecutions of anime type pornography in the federal system. 12:08:34 PM MR. LUCKHAUPT continued. Sections 6, 7, 8 and 9 are the same as the House bill except that a definition related to anime pornography was removed. Sections 9, 10, and 11 are the same as the House bill. CHAIR FRENCH asked if Section 11 is the Miller test. MR. LUCKHAUPT replied it's actually the Ginsberg v. New York test related to supplying adults with things that they could lawfully possess, but that minors might be restricted from possessing. Most states seem to be using this test for regulating the distribution of materials that could be considered "adult" and restricting their distribution to children. Sections 12, 13, and 14 are the same as the House bill. SENATOR COGHILL asked if alcohol or drugs had for any reason been included before Section 13. MR. LUCKHAUPT replied they are presumably included when there's language about a victim who is particularly vulnerable or incapable of resistance. There's also the catch-all phrase, "for any other reason the person was substantially incapable of exercising normal physical or mental powers of resistance." Apparently that's come into question a time or two for DOL, but that's been the understanding, he said. Section 15 is the same as the House bill and Section 16 has a change. He deferred to Ms. Smith for an explanation. 12:11:45 PM SENATOR EGAN joined the meeting. MS. SMITH explained that Senator French requested this change to address a concern that there was no registerable offense for the misdemeanor harassment charge. Section 16 makes it a registerable offense on the second offense. MR. LUCKHAUPT added that this was the spontaneous touching through clothing section that was mentioned earlier. It also removed the provision dealing with registration of sex offenders and the fact that some people have been convicted of crimes in other states. SENATOR COGHILL asked what the conviction criteria were for touching through clothes that will now be a registerable offense. CHAIR FRENCH said the elements of the crime are on page 2, lines 17-20. It would be a misdemeanor for the first conviction so the person would go to jail for a year, but wouldn't have to register as a sex offender thereafter. On the second offense the person would have to register as a sex offender. SENATOR COGHILL surmised that it wouldn't happen very often. CHAIR FRENCH related that when he was a prosecutor C felonies were referred from Chilkoot Charlie's about once a month. The cases are difficult to prove, but with the right witness they could go forward. Most of those cases would resolve this way, but now it's the charge is matched to the crime, he said. 12:14:21 PM MR. LUCKHAUPT continued. Section 17 is the same as the House bill. It relates to the subpoena power of the attorney general for identifying material in an Internet service account in cases involving exploitation of children. CHAIR FRENCH admitted that he's a little queasy with this significant expansion of the subpoena power, but he believes that it's narrow and focused and it would be difficult to claim that the information that is gleaned is the type that is private between the account holder and the service provider. He asked Mr. Luckhaupt to list the types of information that could be obtained by serving the subpoena. MR. LUCKHAUPT said it includes the name of the person holding the account, the address associated with the account, telephone numbers connected to the account, the length of service, the network address, and the means and source of payment for the account. He noted that those are all included in the federal law that deals with this issue. This law was taken from Kentucky. The subpoena does not allow access to any information in the account like email records. It's just identifying information. There is case law in Alaska that says that the identifying characteristics for a utility account, for example, are not protected under the right to privacy in the Alaska Constitution. The problem is that utilities or ISPs are reluctant to release the information without a subpoena even though the information is probably not protected. 12:17:06 PM MR. LUCKHAUPT said Section 18 is new. MS. SMITH explained that this section is a result of the hearings the committee had last summer. One thing that was identified was the dire need to collect accurate statistics regarding the actual level of felony sex crimes committed in the state. Currently the state collects only Uniform Crime Report (UCR) data, which includes only forcible sexual penetration of an adult woman against her will. This provision would be a mandate for The Department of Public Safety (DPS) to begin to require reporting from law enforcement agencies on all types of felony sexual assaults as they are proscribed in the state in order to begin to get accurate data. CHAIR FRENCH recalled hearing that a lot of police departments simply aren't reporting. This is the kind of arm twist we had in mind to encourage reporting, he said. MR. LUCKHAUPT said Section 19 is a court rule amendment dealing with the distribution of materials in cases of child pornography. This provision is basically the same as the relevant portion of a law that Congress passed several years ago. That federal statute has been interpreted in Alaska and applied. The operative provision is whether or not the property is deemed reasonably available to the defendant to use in their defense. To the extent that a hard drive, for example, was made reasonably available and the defense could perform their examination on site then it would be acceptable. He noted that there had been a U.S. district court case in Alaska where the hard drive was in Spokane Washington. The FBI office had possession of the hard drive and would only let the defense examine it during certain hours and with supervision. This could conceivably give the prosecution an idea of what the defense was trying to do at what could be considered an improper time, he said. In that particular case the U.S. district court magistrate found that the materials were not reasonably available to the defendant. 12:20:53 PM CHAIR FRENCH said he read the case and believes that Magistrate Burgess made a thoughtful decision. He was struggling with the need to keep a lid on the material while at the same time providing the defense with a real opportunity to do its work. It takes time to do a forensic examination of a hard drive and if it's located in a place that's difficult for the expert to get to that adds time, expense, and delay to the process. It was interesting that the magistrate pointed out that in the cases that were brought to his attention in the motion practice, the only time that any information had been lost it was by the government, not by the defense. MR. LUCKHAUPT added that the defense would need to show why they wouldn't be able to their examination in the prosecution's or the law enforcement's office. This leaves it up to the judge to make those decisions. SENATOR FRENCH summarized that it keeps the material within the domain of the district attorney's office, but it has to be in a place where the defense has freedom to work. MS. SMITH clarified that the provision regarding the mental state of a person who fails to register that was in the original version of SB 222 is not in the current CS. Thus, the existing law would apply where a mental state would have to be proven. That's the section that deals with the registration of out-of- state offenders, which was in the original version and is not in the CS. 12:23:20 PM SUSAN MCLEAN, Director, Civil Division, Department of Law (DOL), said she would provide introductory comments today, but DOL will want to talk about the deletion of former Section 3 [The repeal and reenactment of AS 11.56.840.] CHAIR FRENCH said that's the provision that eliminated the mental requirement for failure to appear and failure to register. MS. MCLEAN replied it actually reads the same as the current statute. What it does is add an affirmative defense and then the enabling language explains the circumstance of failing to register. This crime has always had a mental state and that is that the person has to know that they have to register. Last year the court of appeals decided a case called Moffitt v. State saying that the state has to prove some mental state - knowingly, recklessly or negligently. Then a week ago that same court of appeals decided a case of a DUI involving Nyquil. The defense was on the grounds that the driver didn't know that Nyquil would make him drunk. The court said that in that circumstance the mental state of not knowing that it would make you drunk is negligently. This puts DOL in the difficult position of having to disprove a negative, she said. MS. MCLEAN, noting that Moffitt applies to the crime of failure to appear, said the state has never had a decision in failure to register as a sex offender that says that the state has to prove why the person didn't register. That's the burden Moffitt places and it's unattainable. It's not possible to disprove why someone didn't do something particularly in a state that doesn't have reciprocal discovery. She pointed out that Moffitt relies on Hutchinson and in each of those cases the defense asked for an instruction saying it should be able to defend on the ground that "I knew I was supposed to be here, but for whatever reason I couldn't be here." MS. MCLEAN said that with failure to register as sex offender, DOL has never had anyone raise the issue of not being able to register, but that's partly because of the way those statutes are written. For example, if someone who has to register is going to be out of town the law requires the person to notify the Department of Public Safety (DPS) before they leave so the defense that they couldn't get back to town and register by the deadline is sort of questionable. 12:26:59 PM MS. MCLEAN said the issue for DOL is that it cannot as part of its burden of proof prove why someone didn't register and that it wasn't reasonable. They are required to prove beyond a reasonable doubt that a person knew he or she had to register. But, she said, as far as why that didn't occur, it's DOL's position that it should be an affirmative defense. She related that just this morning she read that an ombudsman attorney made a suggestion that perhaps a compromise would be to place a negligent mental state on the failure to register. DOL could live with that, she said. CHAIR FRENCH agreed the committee could explore that. MS. MCLEAN said the other part of Section 3 in the original bill related to the duty to register if one had to register in another state. A legitimate issue is what should happen if a registerable offense in another state has not been criminalized in Alaska. For example, consensual adultery and consensual fellatio are not crimes here, but they are in other jurisdictions. Rather than disposing of the entire section, DOL would suggest an amendment to accept consensual acts between adults. The people doing the sex offender registration often get questions from other states about whether or not this is a registerable offense here. She noted that when DOL asked DPS for a list of crimes that are registerable in other states and not here, they were surprised to see mutilation of female genitals on the list. In this state that would be an assault, not a registerable offense. We're asking for this because people do call before they move here to determine whether or not they have to register and if they get an advisory opinion that they don't, they move here. We'd like that decision to be reconsidered, she said. 12:30:31 PM MS. MCLEAN noted that DOL submitted language to reword the new Section 17. One suggestion was to exclude credit card or bank account numbers because of the legitimate privacy concerns. She pointed out that the subpoenaed person that is mentioned in subsection (c) probably won't petition the court to modify or set aside the subpoena because the subpoenaed person is the bank and they just want their potential liability covered. They probably won't assert the privacy interest that someone may have in their bank account number or credit card number if they have a subpoena in hand. CHAIR FRENCH asked if the committee should substitute that phrase with "the target of the subpoena." MS. MCLEAN suggested he look at the language DOL provided, which synthesizes all of it and addresses any possible constitutional challenges. CHAIR FRENCH asked how closely DOL's language tracks the language in the federal administrative subpoena because the language in the CS was lifted from that federal law. MS. MCLEAN replied it tracks it closely, but not identically. DOL believes that the exact federal language would present problems with the state's constitutional right to privacy. CHAIR FRENCH thanked her for providing an overview of the issues and asked her to feel free to meet with Ms. Smith to articulate other suggestions and concerns. 12:33:33 PM SENATOR WIELECHOWSKI moved to adopt the work draft committee substitute for SB 222, labeled 26-GS2859\E, as the working document. There being no objection, version E was before the committee. He asked Mr. Mittman if he had seen the new CS. JEFFREY MITTMAN, Executive Director, ACLU of Alaska, said he sent a request for a copy and he'd like an opportunity to review it before submitting written and verbal comments. SENATOR FRENCH said that sounds eminently fair and he set SB 222 aside for final work on Wednesday. 12:35:16 PM The Senate Judiciary Standing Committee meeting was recessed until 8:30 a.m. Wednesday, April 7, 2010.