Legislature(2009 - 2010)BUTROVICH 205

04/05/2010 11:00 AM Senate JUDICIARY

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Moved CSSB 292(JUD) Out of Committee
        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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                       

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