SENATE BILL NO. 35 IN THE LEGISLATURE OF THE STATE OF ALASKA THIRTY-FIRST LEGISLATURE - FIRST SESSION A BILL FOR AN ACT ENTITLED

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1 SENATE BILL NO. IN THE LEGISLATURE OF THE STATE OF ALASKA THIRTY-FIRST LEGISLATURE - FIRST SESSION BY THE SENATE RULES COMMITTEE BY REQUEST OF THE GOVERNOR Introduced: // Referred: Judiciary, Finance A BILL FOR AN ACT ENTITLED 0 "An Act eliminating marriage as a defense to certain crimes of sexual assault; relating to enticement of a minor; relating to harassment in the first degree; relating to harassment in the second degree; relating to indecent viewing or production of a picture; relating to the definition of 'sexual contact'; relating to assault in the second degree; relating to sentencing; relating to prior convictions; relating to the definition of 'most serious felony'; relating to the definition of 'sexual felony'; relating to the duty of a sex offender or child kidnapper to register; relating to eligibility for discretionary parole; and providing for an effective date." BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: * Section. The uncodified law of the State of Alaska is amended by adding a new section to read: LEGISLATIVE FINDINGS AND INTENT FOR SECS. AND - OF THIS SB00A -- SB

2 0 0 0 ACT. (a) The legislature finds for sec. of this Act, the legislature did not intend, by enacting ch. 0, SLA 00, and the legislature does not now intend by enacting this Act, to impose any limitation on which previous convictions may be considered when imposing a sentence under AS..(i). (b) It is the intent of the legislature for sec. of this Act, in AS.., as amended by sec. of this Act, to overturn the decision in Williams v. State, P.d 0 (Alaska App. 0) to the extent that it held that, when imposing a sentence under AS..(i), prior felony convictions should not be considered if 0 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony. (c) It is the intent of the legislature that all prior felony convictions be considered when imposing a sentence under AS..(i) regardless of the age of those convictions. (d) The legislature finds for secs. - of this Act that () protecting the public from sex offenders is a primary governmental interest and the release of certain information about sex offenders to public agencies and the general public will assist in protecting the public; () the state's transient population means that sex offenders who are required to register in the state where they were convicted may relocate to this state for various reasons; () the supreme court's narrow interpretation of Alaska's sex offender registration requirements in its decision in State, Department of Public Safety v. Doe, P.d (Alaska 0) hinders the state's ability to protect the public from sex offenders who may come to this state in so far as it only requires a person to register as a sex offender in this state if that person has been convicted of an offense that is similar to a sex offense as defined in AS..00. (e) It is the intent of the legislature to overturn State, Department of Public Safety v. Doe, P.d (Alaska 0) to the extent that it held that sex offenders required to register in another jurisdiction do not have to also register in Alaska unless their underlying conviction is similar to a sex offense as defined in AS..00. Additionally, it is the intent of the legislature to give reciprocity to other jurisdictions and require sex offenders who are SB -- SB00A

3 0 0 0 physically present in Alaska and are required to register as a sex offender in another jurisdiction to also register as a sex offender in Alaska regardless of whether the person's underlying conviction is similar to a sex offense as defined in AS..00. * Sec.. AS..(b) is amended to read: (b) Except as provided in (d) [(a)] of this section, in a prosecution under AS [AS..0 OR..0], it is not a defense that the victim was, at the time of the alleged offense, the legal spouse of the defendant. * Sec.. AS.. is amended by adding a new subsection to read: (d) It is a defense to a crime charged under AS..(a)() - () or.. that the offender is married to the person and neither party has filed with the court for separation, divorce, or dissolution of the marriage. * Sec.. AS..(a) is amended to read: (a) A person commits the crime of [ONLINE] enticement of a minor if the person, being years of age or older, knowingly communicates [USES A COMPUTER TO COMMUNICATE] with another person to entice, solicit, or encourage the person to engage in an act described in AS..(a)() - () and () the other person is a child under years of age; or () the person believes that the other person is a child under years of age. * Sec.. AS..(d) is amended to read: (d) Except as provided in (e) of this section, [ONLINE] enticement of a minor is a class B felony. * Sec.. AS..(e) is amended to read: (e) Enticement of a minor [ONLINE ENTICEMENT] is a class A felony if the defendant was, at the time of the offense, required to register as a sex offender or child kidnapper under AS. or a similar law of another jurisdiction. * Sec.. AS..(a) is amended to read: (a) A person commits the crime of harassment in the first degree if () the person violates AS..0(a)() and the offensive physical contact is contact with human or animal blood, mucus, saliva, [SEMEN,] urine, vomitus, or feces; or SB00A -- SB

4 0 0 0 () under circumstances not proscribed under AS , the person violates AS..0(a)() and the offensive physical contact is contact by the person touching through clothing another person's genitals, buttocks, or female breast. * Sec.. AS..0(a) is amended to read: (a) A person commits the crime of harassment in the second degree if, with intent to harass or annoy another person, that person () insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response; () telephones another and fails to terminate the connection with intent to impair the ability of that person to place or receive telephone calls; () makes repeated telephone calls at extremely inconvenient hours; () makes an anonymous or obscene telephone call, an obscene electronic communication, or a telephone call or electronic communication that threatens physical injury or sexual contact; () subjects another person to offensive physical contact; () except as provided in AS.., publishes or distributes electronic or printed photographs, pictures, or films that show the genitals, anus, or female breast of the other person or show that person engaged in a sexual act; [OR] () repeatedly sends or publishes an electronic communication that insults, taunts, challenges, or intimidates a person under years of age in a manner that places the person in reasonable fear of physical injury; or () under circumstances not proscribed in AS.. or.., repeatedly sends electronic or printed photographs, pictures, or films to another person that show the genitals of any person. * Sec.. AS..(a) is amended to read: (a) A person commits the crime of indecent viewing or production of a picture [PHOTOGRAPHY] if, in the state, the person knowingly () views [, OR PRODUCES] a picture of, the private exposure of the genitals, anus, or female breast of another person and the view [OR PRODUCTION] is without the knowledge or consent of SB -- SB00A

5 0 0 0 (A) [()] the parent or guardian of the person viewed [, OR WHO IS SHOWN] in the picture, if the person [WHO IS] viewed [OR SHOWN] is under years of age; and (B) [()] the person viewed [OR SHOWN] in the picture, if the person viewed [OR SHOWN] is at least years of age; or () produces a picture of, the private exposure of the genitals, anus, or female breast of another person and the production is without the knowledge or consent of (A) the parent or guardian of the person shown in the picture, if the person shown is under years of age; and (B) the person shown in the picture, if the person shown is at least years of age. * Sec. 0. AS..(c) is amended to read: (c) This section does not apply to the viewing or production of pictures [PHOTOGRAPHY] conducted by a law enforcement agency for a law enforcement purpose. * Sec.. AS..(d) is amended to read: (d) In a prosecution under this section, it is an affirmative defense that the viewing or production of pictures [PHOTOGRAPHY] was conducted as a security surveillance system, notice of the viewing or production [PHOTOGRAPHY] was posted, and any viewing or use of pictures produced is done only in the interest of crime prevention or prosecution. * Sec.. AS..(f) is amended to read: (f) Indecent viewing or production of a picture [PHOTOGRAPHY] is a () class C felony if (A) the person violates (a)() or () of this section and the person viewed or shown in a picture was, at the time of the viewing or production of the picture, under years of age [A MINOR]; or (B) the person violates (a)() of this section and the person shown in a picture was, at the time of the production of the picture, an adult () class A misdemeanor if the person violates (a)() of this section SB00A -- SB

6 0 0 0 and the person viewed [OR SHOWN] in a picture was, at the time of the viewing [OR PRODUCTION] of the picture, an adult. * Sec.. AS..00(b)() is amended to read: () "sexual contact" means (A) the defendant's (i) knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast; [OR] (ii) knowingly causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast; or (iii) knowingly causing the victim to come into contact with semen; (B) but "sexual contact" does not include acts (i) that may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child; (ii) performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted to promoting the physical or mental health of the person being treated; or (iii) that are a necessary part of a search of a person committed to the custody of the Department of Corrections or the Department of Health and Social Services; * Sec.. AS..(d) is amended to read: (d) Except as provided in (i) of this section, a defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 0 years, and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS.. -..: () if the offense is a first felony conviction and does not involve circumstances described in () or () of this subsection, zero to two years; a defendant sentenced under this paragraph may, if the court finds it appropriate, be granted a suspended imposition of sentence under AS..0; SB -- SB00A

7 0 0 0 () if the offense is a first felony conviction, the defendant violated AS..0, and the victim was (A) a child under years of age, two to four years; or (B) was years of age or older, one to three years; () if the offense is a second felony conviction, two to five years; () if the offense is a third felony conviction, four to 0 years; () if the defendant violated AS..0(a)() and (A) the offense is a first felony conviction, one to three years; (B) the offense is a second felony conviction, four to seven years; (C) the offense is a third felony conviction, six to ten years. * Sec.. AS..(i) is amended to read: (i) A defendant convicted of () sexual assault in the first degree, sexual abuse of a minor in the first degree, or sex trafficking in the first degree under AS..0(a)() may be sentenced to a definite term of imprisonment of not more than years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS.. -..: (A) if the offense is a first felony conviction, the offense does not involve circumstances described in (B) of this paragraph, and the victim was (i) less than years of age, to years; (ii) years of age or older, 0 to 0 years; (B) if the offense is a first felony conviction and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, to years; (C) if the offense is a second felony conviction and does not involve circumstances described in (D) of this paragraph, 0 to 0 years; (D) if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, to years; SB00A -- SB

8 0 0 0 (E) if the offense is a third felony conviction and the defendant is not subject to sentencing under (F) of this paragraph or (l) of this section, 0 to 0 years; (F) if the offense is a third felony conviction, the defendant is not subject to sentencing under (l) of this section, and the defendant has two prior convictions for sexual felonies, years; () unlawful exploitation of a minor under AS..(c)(), [ONLINE] enticement of a minor under AS..(e), or attempt, conspiracy, or solicitation to commit sexual assault in the first degree, sexual abuse of a minor in the first degree, or sex trafficking in the first degree under AS..0(a)() may be sentenced to a definite term of imprisonment of not more than years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS.. -..: (A) if the offense is a first felony conviction, the offense does not involve circumstances described in (B) of this paragraph, and the victim was (i) under years of age, 0 to 0 years; (ii) years of age or older, to 0 years; (B) if the offense is a first felony conviction and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, to years; (C) if the offense is a second felony conviction and does not involve circumstances described in (D) of this paragraph, to years; (D) if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, 0 to 0 years; (E) if the offense is a third felony conviction, the offense does not involve circumstances described in (F) of this paragraph, and the defendant is not subject to sentencing under (l) of this section, to 0 years; (F) if the offense is a third felony conviction, the defendant is not subject to sentencing under (l) of this section, and the defendant has two prior convictions for sexual felonies, years; SB -- SB00A

9 0 0 0 () sexual assault in the second degree, sexual abuse of a minor in the second degree, [ONLINE] enticement of a minor under AS..(d), unlawful exploitation of a minor under AS..(c)(), or distribution of child pornography under AS..(e)() may be sentenced to a definite term of imprisonment of not more than years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS.. -..: (A) if the offense is a first felony conviction, five to years; (B) if the offense is a second felony conviction and does not involve circumstances described in (C) of this paragraph, 0 to years; (C) if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, to 0 years; (D) if the offense is a third felony conviction and does not involve circumstances described in (E) of this paragraph, 0 to years; (E) if the offense is a third felony conviction and the defendant has two prior convictions for sexual felonies, years; () sexual assault in the third degree, sexual abuse of a minor in the third degree if the victim is at least six years younger than the offender, incest, indecent exposure in the first degree, indecent viewing or production of a picture under AS..(a) if the person viewed or shown in the picture was, at the time of the viewing or production, under years of age, possession of child pornography, distribution of child pornography under AS..(e)(), or attempt, conspiracy, or solicitation to commit sexual assault in the second degree, sexual abuse of a minor in the second degree, unlawful exploitation of a minor, or distribution of child pornography, may be sentenced to a definite term of imprisonment of not more than years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS.. -..: (A) if the offense is a first felony conviction, two to years; (B) if the offense is a second felony conviction and does not involve circumstances described in (C) of this paragraph, eight to years; (C) if the offense is a second felony conviction and the defendant has a prior conviction for a sexual felony, to 0 years; SB00A -- SB

10 0 0 0 (D) if the offense is a third felony conviction and does not involve circumstances described in (E) of this paragraph, to years; (E) if the offense is a third felony conviction and the defendant has two prior convictions for sexual felonies, years. * Sec.. AS..(a) is amended to read: (a) For purposes of considering prior convictions in imposing sentence under () AS..(c), (d), or (e), (A) a prior conviction may not be considered if a period of 0 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony; (B) a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction; (C) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective; () AS..(l), (A) a conviction in this or another jurisdiction of an offense having elements similar to those of a most serious felony is considered a prior most serious felony conviction; (B) commission of and conviction for offenses relied on as prior most serious felony offenses must occur in the following order: conviction for the first offense must occur before commission of the second offense, and conviction for the second offense must occur before commission of the offense for which the defendant is being sentenced; () AS..(g), SB -0- SB00A

11 0 0 0 (A) a prior conviction may not be considered if a period of five or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony; (B) a conviction in this or another jurisdiction of an offense having elements similar to those of a crime against a person or a crime involving domestic violence is considered a prior conviction; (C) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective; () AS..(i), (A) a conviction in this or another jurisdiction of an offense having elements similar to those of a sexual felony is a prior conviction for a sexual felony; (B) a felony conviction in another jurisdiction making it a crime to commit any lewd and lascivious act upon a child under the age of years, with the intent of arousing, appealing to, or gratifying the sexual desires of the defendant or the victim is a prior conviction for a sexual felony; (C) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective; (D) a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska SB00A -- SB

12 0 0 0 law at the time the offense was committed is considered a prior felony conviction; () AS..(a), (A) a prior conviction may not be considered if a period of five or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony; (B) a conviction in this or another jurisdiction of an offense having elements similar to those of a felony or misdemeanor defined as such under Alaska law at the time the offense was committed is considered a prior conviction; (C) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction unless the defendant was sentenced to consecutive sentences for the crimes; offenses committed while attempting to escape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective. * Sec.. AS..(0) is amended to read: (0) "most serious felony" means (A) arson in the first degree, sex trafficking in the first degree under AS..0(a)(), [ONLINE] enticement of a minor under AS..(e), or any unclassified or class A felony prescribed under AS.; or (B) an attempt, or conspiracy to commit, or criminal solicitation under AS..0 of, an unclassified felony prescribed under AS.; * Sec.. AS..() is amended to read: () "sexual felony" means sexual assault in the first degree, sexual abuse of a minor in the first degree, sex trafficking in the first degree, sexual assault in the second degree, sexual abuse of a minor in the second degree, sexual abuse of a SB -- SB00A

13 0 0 0 minor in the third degree if the victim is at least six years younger than the offender, unlawful exploitation of a minor, indecent viewing or production of a picture under AS..(a) if the person viewed or shown in the picture was, at the time of the viewing or production, under years of age, distribution of child pornography, sexual assault in the third degree, incest, indecent exposure in the first degree, possession of child pornography, [ONLINE] enticement of a minor, and felony attempt, conspiracy, or solicitation to commit those crimes; * Sec.. AS..00() is amended to read: () "sex offender or child kidnapper" means (A) a person convicted of a sex offense or child kidnapping in this state or another jurisdiction regardless of whether the conviction occurred before, after, or on January, ; or (B) a person who is required to register as a sex offender or child kidnapper under the laws of another jurisdiction; * Sec. 0. AS..00() is amended to read: () "sex offense" means (A) a crime under AS..00(a)(), or a similar law of another jurisdiction, in which the person committed or attempted to commit a sexual offense, or a similar offense under the laws of the other jurisdiction; in this subparagraph, "sexual offense" has the meaning given in AS..00(a)(); (B) a crime under AS..0(a)(), or a similar law of another jurisdiction, in which the person committed or attempted to commit one of the following crimes, or a similar law of another jurisdiction: (i) sexual assault in the first degree; (ii) sexual assault in the second degree; (iii) sexual abuse of a minor in the first degree; or (iv) sexual abuse of a minor in the second degree; (C) a crime, or an attempt, solicitation, or conspiracy to commit a crime, under the following statutes or a similar law of another jurisdiction: (i) AS ; SB00A -- SB

14 0 0 0 (ii) AS..0(a)(); (iii) AS ; (iv) AS..0 or AS.0.00(c) if the indecent exposure is before a person under years of age and the offender has previously been convicted under AS..0 or AS.0.00(c); (v) AS.. -..; (vi) AS..0,..0(a)()(B), or AS.0.00(b) if the person who was induced or caused to engage in prostitution was under 0 years of age at the time of the offense; (vii) former AS..0, former.., or assault with the intent to commit rape under former AS..0, former AS.0.0, or former.0.00; (viii) AS..(a)() if the offender has a previous conviction for that offense; (ix) AS..00(a)() if the offender is subject to punishment under AS..00(e); (x) AS.0.0 if the person engaged in sexual penetration or sexual contact with the victim; (xi) AS.0.0 if, at the time of the offense, the victim is under a duty to obey the lawful orders of the offender, regardless of whether the offender is in the direct chain of command over the victim; (xii) AS.0. if the person engaged in sexual penetration or sexual contact with the victim; (xiii) AS.0.00(a)() - () if the victim is under years of age at the time of the offense; [OR] (xiv) AS.0.00 if, at the time of the offense, the victim is under a duty to obey the lawful orders of the offender, regardless of whether the offender is in the direct chain of command over the victim; or (xv) AS.. if the offender is subject to SB -- SB00A

15 0 0 0 punishment under AS..(f)(); [OR] (D) an offense, or an attempt, solicitation, or conspiracy to commit an offense, under AS.0.(b), or a similar law of another jurisdiction, if the member of the militia commits one of the following enumerated offenses punishable under Article, 0 U.S.C. (Uniform Code of Military Justice): (i) child pornography; or (ii) pandering and prostitution if the person who is induced, enticed, caused, or procured to engage in a sexual act is under 0 years of age at the time of the offense; or (E) an offense in which the person is required to register as a sex offender under the laws of another jurisdiction; * Sec.. AS..00(a) is amended to read: (a) A prisoner sentenced to an active term of imprisonment of at least days may, in the discretion of the board, be released on discretionary parole if the prisoner () has served the amount of time specified under (b) of this section, except that (A) a prisoner sentenced to one or more mandatory -year terms under AS..(a) or one or more definite terms under AS..(l) is not eligible for consideration for discretionary parole; (B) a prisoner is not eligible for consideration of discretionary parole if made ineligible by order of a court under AS..; (C) a prisoner imprisoned under AS..0 is not eligible for discretionary parole unless the actual term of imprisonment is more than one year; (D) a prisoner sentenced to a single sentence within or below a presumptive range set out in AS..(i)() and (), and has not been allowed by the three-judge panel under AS.. to be considered for discretionary parole release, is not eligible for consideration of discretionary parole; SB00A -- SB

16 0 0 0 (E) a sentence that is ineligible for a good time deduction under AS.0.00(a)() and has not been allowed by the three-judge panel under AS.. to be considered for discretionary parole release, is not eligible for consideration for discretionary parole; or () is at least 0 years of age, has served at least 0 years of a sentence for one or more crimes in a single judgment, and has not been convicted of an unclassified felony or a sexual felony as defined in AS... * Sec.. AS..(a)() and AS..00(b)() are repealed. * Sec.. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. (a) The following sections apply to offenses committed on or after the effective date of this Act: () AS..(b), as amended by sec. of this Act; () AS..(a), as amended by sec. of this Act; () AS..(d), as amended by sec. of this Act; () AS..(e), as amended by sec. of this Act; () AS..0(a), as amended by sec. of this Act; () AS..(a), as amended by sec. of this Act; () AS..(f), as amended by sec. of this Act; () AS..00(b)(), as amended by sec. of this Act; () AS..(d), as amended by sec. of this Act; (0) AS..(i), as amended by sec. of this Act; () AS..(a), as amended by sec. of this Act; () AS..(0), as amended by sec. of this Act; () AS..(), as amended by sec. of this Act. (b) The following sections apply to the duty to register as a sex offender for offenses committed on or after the effective date of this Act: () AS..00(), as amended by sec. of this Act; () AS..00(), as amended by sec. 0 of this Act. (c) AS..00(a), as amended by sec. of this Act, applies to parole granted on or after the effective date of this Act for conduct occurring on or after the effective date of this SB -- SB00A

17 Act. * Sec.. This Act takes effect July, 0. SB00A -- SB