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26th Legislature(2009-2010)

Bill Text 26th Legislature


00 Enrolled SB 222                                                                                                         
01 Relating to the crimes of harassment, distribution and possession of child pornography, failure                         
02 to register as a sex offender or child kidnapper, and distribution of indecent material to a                            
03 minor; relating to suspending imposition of sentence and conditions of probation or parole for                          
04 human trafficking or for certain sex offenses; relating to aggravating factors in sentencing;                           
05 relating to reporting of crimes; relating to administrative subpoenas for certain records                               
06 involving exploitation of children; and providing for an effective date.                                                
07                           _______________                                                                               
08    * Section 1. AS 11.56.759(a) is amended to read:                                                                   
09            (a)  A person commits the crime of violation by sex offender of condition of                                 
10       probation [OR PAROLE] if the person                                                                               
11                 (1)  is on probation [OR PAROLE] for conviction of a sex offense;                                       
12                 (2)  has served the entire term of incarceration imposed for conviction                                 
01       of the sex offense; and                                                                                           
02                 (3)  [EITHER                                                                                            
03                      (A)]  violates a condition of probation imposed under                                              
04            AS 12.55.100(a)(5), (a)(6), or (e), 12.55.101(a)(1), or any other condition                                  
05            imposed by the court that the court finds to be specifically related to the                                  
06            defendant's offense [; OR                                                                                    
07                      (B)  VIOLATES A CONDITION OF PAROLE IMPOSED                                                        
08            UNDER AS 33.16.150(a)(3), (a)(4), (a)(6), (a)(13), (b)(4), (b)(11), OR (f)].                                 
09    * Sec. 2. AS 11.56.759(c) is amended to read:                                                                      
10            (c)  Violation by sex offender of condition of probation [OR PAROLE] is a                                    
11       class A misdemeanor.                                                                                              
12    * Sec. 3. AS 11.56.840 is repealed and reenacted to read:                                                          
13            Sec. 11.56.840. Failure to register as a sex offender or child kidnapper in                                
14       the second degree. (a) A person commits the crime of failure to register as a sex                               
15       offender or child kidnapper in the second degree if the person                                                    
16                 (1)  is required to register under AS 12.63.010;                                                        
17                 (2)  knows that the person is required to register under AS 12.63.010;                                  
18       and                                                                                                               
19                 (3)  fails to                                                                                           
20                      (A)  register;                                                                                     
21                      (B)  file written notice of                                                                        
22                           (i)  change of residence;                                                                     
23                           (ii)  change of mailing address;                                                              
24                           (iii)  establishment of an electronic or messaging address                                    
25                 or any change to an electronic or messaging address; or                                                 
26                           (iv)  establishment of an Internet communication                                              
27                 identifier or any change to an Internet communication identifier;                                       
28                      (C)  file the annual or quarterly written verification; or                                         
29                      (D)  supply accurate and complete information required to be                                       
30            submitted under this paragraph.                                                                              
31            (b)  In a prosecution for failure to register as a sex offender or child kidnapper                           
01       in the second degree under (a) of this section, it is an affirmative defense that                                 
02                 (1)  unforeseeable circumstances, outside the control of the person,                                    
03       prevented the person from registering under (a)(3)(A) of this section or filing or                                
04       supplying the written notices, verification, and other information required under                                 
05       (a)(3)(B) - (D) of this section; and                                                                              
06                 (2)  the person contacted the Department of Public Safety orally and in                                 
07       writing immediately upon being able to perform the requirements described in this                                 
08       section.                                                                                                          
09            (c)  Failure to register as a sex offender or child kidnapper in the second degree                           
10       is a class A misdemeanor.                                                                                         
11    * Sec. 4. AS 11.61.118(a) is amended to read:                                                                      
12            (a)  A person commits the crime of harassment in the first degree if                                         
13                 (1)  the person violates AS 11.61.120(a)(5) and the offensive physical                              
14       contact is contact with human or animal blood, mucus, saliva, semen, urine, vomitus,                              
15       or feces; or                                                                                                  
16                 (2)  under circumstances not proscribed under AS 11.41.434 -                                        
17       11.41.440, the person violates AS 11.61.120(a)(5) and the offensive physical                                  
18       contact is contact by the person touching through clothing another person's                                   
19       genitals, buttocks, or female breast.                                                                         
20    * Sec. 5. AS 11.61.125(a) is amended to read:                                                                      
21            (a)  A person commits the crime of distribution of child pornography if the                                  
22       person distributes in this state or advertises, promotes, solicits, or offers to                              
23       distribute in this state [BRINGS OR CAUSES TO BE BROUGHT INTO THE                                             
24       STATE FOR DISTRIBUTION, OR IN THE STATE DISTRIBUTES, OR IN THE                                                    
25       STATE POSSESSES, PREPARES, PUBLISHES, OR PRINTS WITH INTENT TO                                                    
26       DISTRIBUTE,] any material that is proscribed under AS 11.61.127 [VISUALLY                                     
27       OR AURALLY DEPICTS CONDUCT DESCRIBED IN AS 11.41.455(a),                                                          
28       KNOWING THAT THE PRODUCTION OF THE MATERIAL INVOLVED THE                                                          
29       USE OF A CHILD UNDER 18 YEARS OF AGE WHO ENGAGED IN THE                                                           
30       CONDUCT].                                                                                                         
31    * Sec. 6. AS 11.61.127(a) is amended to read:                                                                      
01            (a)  A person commits the crime of possession of child pornography if the                                    
02       person knowingly possesses or knowingly accesses on a computer with intent to                                 
03       view any material that visually [OR AURALLY] depicts conduct described in                                     
04       AS 11.41.455(a) knowing that the production of the material involved the use of a                                 
05       child under 18 years of age who engaged in the conduct or a depiction of a part of an                         
06       actual child under 18 years of age who, by manipulation, creation, or                                         
07       modification, appears to be engaged in the conduct.                                                           
08    * Sec. 7. AS 11.61.127(c) is amended to read:                                                                      
09            (c)  Each film, audio, video, electronic, or electromagnetic recording,                                      
10       photograph, negative, slide, book, newspaper, magazine, or other material that visually                           
11       or aurally depicts conduct described in AS 11.41.455(a) that is possessed or accessed                         
12       in violation of (a) of this section [BY A PERSON KNOWING THAT THE                                             
13       PRODUCTION OF THE MATERIAL INVOLVED THE USE OF A CHILD                                                            
14       UNDER 18 YEARS OF AGE THAT ENGAGED IN THE CONDUCT] is a separate                                                  
15       violation of this section.                                                                                        
16    * Sec. 8. AS 11.61.127 is amended by adding new subsections to read:                                               
17            (e)  In a prosecution under (a) of this section, it is an affirmative defense that                           
18       the person                                                                                                        
19                 (1)  possessed or accessed fewer than three depictions described in (a)                                 
20       of this section; and                                                                                              
21                 (2)  without allowing any person other than a law enforcement agency                                    
22       to view the depictions, either took reasonable steps to destroy the depictions, or                                
23       reported the matter to a law enforcement agency and allowed the agency access to the                              
24       depictions.                                                                                                       
25            (f)  In this section, "computer" has the meaning given in AS 11.46.990.                                      
26            (g)  In a prosecution under (a) of this section, the prosecution is not required to                          
27       prove the identity of a minor depicted or that the defendant knew the identity of a                               
28       minor depicted.                                                                                                 
29    * Sec. 9. AS 11.61.128(a) is amended to read:                                                                      
30            (a)  A person commits the crime of [ELECTRONIC] distribution of indecent                                     
31       material to minors if                                                                                             
01                 (1)  the person, being 18 years of age or older, knowingly distributes to                               
02       another person [BY COMPUTER] any material that depicts the following actual or                                    
03       simulated conduct:                                                                                                
04                      (A)  sexual penetration;                                                                           
05                      (B)  the lewd touching of a person's genitals, anus, or female                                     
06            breast;                                                                                                      
07                      (C)  masturbation;                                                                                 
08                      (D)  bestiality;                                                                                   
09                      (E)  the lewd exhibition of a person's genitals, anus, or female                                   
10            breast; or                                                                                                   
11                      (F)  sexual masochism or sadism; [AND]                                                             
12                 (2)  the material is harmful to minors; and                                                         
13                 (3)  either                                                                                         
14                      (A)  the other person is a child under 16 years of age; or                                         
15                      (B)  the person believes that the other person is a child under 16                                 
16            years of age.                                                                                                
17    * Sec. 10. AS 11.61.128(c) is amended to read:                                                                     
18            (c)  Except as provided in (d) of this section, [ELECTRONIC] distribution of                                 
19       indecent material to minors is a class C felony.                                                                  
20    * Sec. 11. AS 11.61.128(d) is amended to read:                                                                     
21            (d)  Distribution [ELECTRONIC DISTRIBUTION] of indecent material to                                      
22       minors is a class B felony if the defendant was, at the time of the offense, required to                          
23       register as a sex offender or child kidnapper under AS 12.63 or a similar law of                                  
24       another jurisdiction.                                                                                             
25    * Sec. 12. AS 11.61.128 is amended by adding a new subsection to read:                                             
26            (e)  In this section, "harmful to minors" means                                                              
27                 (1)  the average individual, applying contemporary community                                            
28       standards, would find that the material, taken as a whole, appeals to the prurient                                
29       interest in sex for persons under 16 years of age;                                                                
30                 (2)  a reasonable person would find that the material, taken as a whole,                                
31       lacks serious literary, artistic, educational, political, or scientific value for persons                         
01       under 16 years of age; and                                                                                        
02                 (3)  the material depicts actual or simulated conduct in a way that is                                  
03       patently offensive to the prevailing standards in the adult community as a whole with                             
04       respect to what is suitable for persons under 16 years of age.                                                    
05    * Sec. 13. AS 12.55.085(f) is amended to read:                                                                     
06            (f)  The court may not suspend the imposition of sentence of a person who                                    
07                 (1)  is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260                                 
08       - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, [OR] AS 11.46.400, or                          
09       AS 11.61.125 - 11.61.128;                                                                                     
10                 (2)  uses a firearm in the commission of the offense for which the                                      
11       person is convicted; or                                                                                           
12                 (3)  is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony                                
13       and the person has one or more prior convictions for a misdemeanor violation of                                   
14       AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction                              
15       having [SUBSTANTIALLY] similar elements to an offense defined as a misdemeanor                                    
16       in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person                            
17       shall be considered to have a prior conviction even if that conviction has been set aside                         
18       under (e) of this section or under the equivalent provision of the laws of another                                
19       jurisdiction.                                                                                                     
20    * Sec. 14. AS 12.55.100(e) is repealed and reenacted to read:                                                      
21            (e)  In addition to other conditions imposed on the defendant, while on                                      
22       probation and as a condition of probation                                                                         
23                 (1)  for a sex offense, as described in AS 12.63.100, the defendant                                     
24                      (A)  shall be required to submit to regular periodic polygraph                                     
25            examinations;                                                                                              
26                      (B)  may be required to provide each electronic mail address,                                      
27            instant messaging address, and other Internet communication identifier that the                              
28            defendant uses to the defendant's probation officer; the probation officer shall                             
29            forward those addresses and identifiers to the Alaska state troopers and to the                              
30            local law enforcement agency;                                                                                
31                 (2)  if the defendant was convicted of a violation of AS 11.41.434 -                                    
01       11.41.455, AS 11.61.125 - 11.61.128, or a similar offense in another jurisdiction, the                            
02       defendant may be required to refrain from                                                                         
03                      (A)  using or creating an Internet site;                                                           
04                      (B)  communicating with children under 16 years of age; or                                         
05                      (C)  possessing or using a computer.                                                               
06    * Sec. 15. AS 12.55.155(c)(5) is amended to read:                                                                  
07                 (5)  the defendant knew or reasonably should have known that the                                        
08       victim of the offense was particularly vulnerable or incapable of resistance due to                               
09       advanced age, disability, ill health, homelessness, consumption of alcohol or drugs,                          
10       or extreme youth or was for any other reason substantially incapable of exercising                                
11       normal physical or mental powers of resistance;                                                                   
12    * Sec. 16. AS 12.55.155(c)(18) is amended to read:                                                                 
13                 (18)  the offense was a felony                                                                          
14                      (A)  specified in AS 11.41 and was committed against a spouse,                                     
15            a former spouse, or a member of the social unit made up of those living                                      
16            together in the same dwelling as the defendant;                                                              
17                      (B)  specified in AS 11.41.410 - 11.41.458 and the defendant                                       
18            has engaged in the same or other conduct prohibited by a provision of                                        
19            AS 11.41.410 - 11.41.460 involving the same or another victim; [OR]                                          
20                      (C)  specified in AS 11.41 that is a crime involving domestic                                      
21            violence and was committed in the physical presence or hearing of a child                                    
22            under 16 years of age who was, at the time of the offense, living within the                                 
23            residence of the victim, the residence of the perpetrator, or the residence where                            
24            the crime involving domestic violence occurred;                                                              
25                      (D)  specified in AS 11.41 and was committed against a                                         
26            person with whom the defendant has a dating relationship or with whom                                    
27            the defendant has engaged in a sexual relationship; or                                                   
28                      (E)  specified in AS 11.41.434 - 11.41.458 or AS 11.61.128                                     
29            and the defendant was 10 or more years older than the victim;                                            
30    * Sec. 17. AS 12.62.130 is amended to read:                                                                        
31            Sec. 12.62.130. Reporting of uniform crime information. A criminal justice                                 
01       agency shall submit to the department, at the time, in the manner, and in the form                                
02       specified by the department, data regarding crimes committed within that agency's                                 
03       jurisdiction. At a minimum, the department shall require a criminal justice                                   
04       agency to report each felony sex offense committed in the agency's jurisdiction.                              
05       The department may withhold grant funding to a criminal justice agency that                                   
06       fails to report data as required by this section. The department shall compile, and                           
07       provide to the governor and the attorney general, an annual report concerning the                                 
08       number and nature of criminal offenses committed, the disposition of the offenses, and                            
09       any other data the commissioner finds appropriate relating to the method, frequency,                              
10       cause, and prevention of crime. In this section, "sex offense" has the meaning given                          
11       in AS 12.63.100.                                                                                              
12    * Sec. 18. AS 12.63.100(6) is amended to read:                                                                     
13                 (6)  "sex offense" means                                                                                
14                      (A)  a crime under AS 11.41.100(a)(3), or a similar law of                                         
15            another jurisdiction, in which the person committed or attempted to commit a                                 
16            sexual offense, or a similar offense under the laws of the other jurisdiction; in                            
17            this subparagraph, "sexual offense" has the meaning given in                                                 
18            AS 11.41.100(a)(3);                                                                                          
19                      (B)  a crime under AS 11.41.110(a)(3), or a similar law of                                         
20            another jurisdiction, in which the person committed or attempted to commit                                   
21            one of the following crimes, or a similar law of another jurisdiction:                                       
22                           (i)  sexual assault in the first degree;                                                      
23                           (ii)  sexual assault in the second degree;                                                    
24                           (iii)  sexual abuse of a minor in the first degree; or                                        
25                           (iv)  sexual abuse of a minor in the second degree; or                                    
26                      (C)  a crime, or an attempt, solicitation, or conspiracy to commit                                 
27            a crime, under the following statutes or a similar law of another jurisdiction:                              
28                           (i)  AS 11.41.410 - 11.41.438;                                                                
29                           (ii)  AS 11.41.440(a)(2);                                                                     
30                           (iii)  AS 11.41.450 - 11.41.458;                                                              
31                           (iv)  AS 11.41.460 if the indecent exposure is before a                                       
01                 person under 16 years of age and the offender has a previous conviction                                 
02                 for that offense;                                                                                       
03                           (v)  AS 11.61.125 - 11.61.128;                                                                
04                           (vi)  AS 11.66.110 or 11.66.130(a)(2) if the person who                                       
05                 was induced or caused to engage in prostitution was 16 or 17 years of                                   
06                 age at the time of the offense; [OR]                                                                    
07                           (vii)  former AS 11.15.120, former 11.15.134, or assault                                      
08                 with the intent to commit rape under former AS 11.15.160, former                                        
09                 AS 11.40.110, or former 11.40.200; or                                                               
10                           (viii)  AS 11.61.118(a)(2) if the offender has a                                          
11                 previous conviction for that offense;                                                               
12    * Sec. 19. AS 44.23 is amended by adding a new section to read:                                                    
13            Sec. 44.23.080. Subpoena power of attorney general in cases involving use                                  
14       of an Internet service account in the exploitation of children. (a) In an                                       
15       investigation of an offense under AS 11.41.452, 11.41.455, or AS 11.61.125 -                                      
16       11.61.128 and on reasonable cause to believe that an Internet service account has been                            
17       used in the exploitation or attempted exploitation of children, the attorney general may                          
18       issue in writing and cause to be served a subpoena requiring the production and                                   
19       testimony described in (b) of this section.                                                                       
20            (b)  A person receiving a subpoena under (a) of this section shall disclose, for                             
21       the account that is the subject of the subpoena,                                                                
22                 (1)  the name of the person holding the account;                                                      
23                 (2)  the address and physical location associated with the account; and                               
24                 (3)  length of service, including service start date, and types of service                            
25       used by the account.                                                                                              
26            cAt any time before the return date specified on the subpoena, the subpoenaed                            
27       person may petition a court of competent jurisdiction for the judicial district in which the                      
28       person resides or does business for an order modifying or setting aside the subpoena or for                       
29       an order sealing the court record.                                                                              
30            (d)  A subpoena under this section must describe the objects required to be                                
31       produced and must prescribe a return date with a reasonable period of time within which                           
01       the objects must be assembled and produced.                                                                       
02            (e)  If no case or proceeding arises from the production of records or other                                 
03       documents under this section within a reasonable time after those records or documents                            
04       are produced, the attorney general shall either destroy the records and documents or return                       
05       them to the person who produced them.                                                                             
06            (f)  A subpoena issued under this section may be served as provided for service of                           
07       subpoenas under Rule 45, Alaska Rules of Civil Procedure, or for service of process under                         
08       Rule 4, Alaska Rules of Civil Procedure.                                                                          
09            (g)  Except as provided in this section, any information, records, or data reported                          
10       or obtained under a subpoena under this section shall remain confidential and may not be                          
11       disclosed unless the disclosure occurs in connection with a criminal case related to the                          
12       subpoenaed materials.                                                                                             
13    * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to                         
14 read:                                                                                                                   
15       LEGISLATIVE STATEMENT CONCERNING CULPABLE MENTAL STATE. In                                                        
16 AS 11.56.840(a), as repealed and reenacted by sec. 3 of this Act, the only culpable mental                              
17 state required to be proven by the prosecution is the "knowing" requirement in paragraph (2)                            
18 of that subsection. No other culpable mental state needs to be proven for the other elements of                         
19 that offense.                                                                                                           
20    * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to                         
21 read:                                                                                                                   
22       APPLICABILITY. (a) Sections 1 - 16 and 18 of this Act apply to offenses committed                                 
23 on or after the effective date of this Act.                                                                             
24       (b)  Section 19 of this Act applies to offenses committed before, on, or after the                                
25 effective date of this Act.                                                                                             
26    * Sec. 22. This Act takes effect July 1, 2010.                                                                     
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