Alaska has the dubious distinction of having the highest rate of sexual assaults in the country. For this reason, the Alaska legislature this year dramatically increased the sentences for those convicted of sexual offenses. Now, this bill was signed in April and took effect in July. I'm writing about it now because I have been pondering this situation for a while and there are a few things I want to make clear.
Before I do, I want to point out that I am not in favor of sexual violence against anybody. I don't think I should have to point that out, but I am not making apologies for rapes or molestations in any way. I am, though, wanting to suggest that we keep matters in perspective. And I have some suggestions for better ways to deal with this crime in Alaska.
First, even though we have the highest rate of sexual assault, the numbers are not very large. Part of the 'need' for this bill was that sexual assaults rose by more than 20% between 2000 and 2003. Sounds bad, right? Well, realize that they rose from roughly 500 in 2000 to 600 in 2003. But once again fell in 2004 to about 550. What we are seeing is just the normal fluctuation in numbers.
Second, this bill is premised on the idea that sexual assaults are knowing or intentional conduct. In the Journal text, it is clear that the Alaska legislature was focusing upon sexual predators. The discussion focuses primarily upon those who sexually abuse younger children. The discussion also deals with knowing or intentional behavior:
"In Senate Bill 218, the low end of the range for the most serious sex offenses is higher than the mandatory minimum or low end of presumptive sentences for some crimes that result in death. This is intentional and not anomalous. Sex offenses cause great harm to victims, their families and to the entire community. Death has always been seen as the greatest harm that could be inflicted by an offender. But death can be caused by reckless conduct. Sex offenses are not reckless - they are at the very least knowing, and often intentional."
This discussion is very interesting, but it is wrong legally. Before explaining that statement, let me explain to the uninitiated how criminal law works in general and then in Alaska. To be convicted of a crime, the State must prove that a person not only acted a certain way, but also thought a certain way. This type of thinking is called 'mens rea'. For example, murder in the first degree usually requires at a minimum that the offender intended to kill the victim. If I shoot someone by accident, then I might be guilty of reckless or negligent homicide, but not of first degree murder. It is a legitimate defense to argue that a client is indeed guilty, but of a lesser crime than the one of which he is accused.
Alaska has four different mens reas: intentionally, knowingly, recklessly, and negligently. Intentionally means that you act with a specific goal in mind. It is the mens rea in first degree murder, burglary, and attempted crimes. Knowingly means that you actually know what you are doing. Reckless means that the offender ignored a 'substantial and unjustifiable risk' that his conduct would create a certain result (such as playing Russian roulette). Negligence, in the criminal sense in Alaska, means being so grossly unaware of a substantial and unjustifiable risk as to be criminal, basically.
In Alaska law, if a statute governing criminal behavior does not specify a mens rea, then the mens rea is knowing regarding conduct and reckless regarding circumstances. As you might guess, the sexual assault statutes do not specify a mens rea. For sexual assault in the first degree, then, the State must prove that a defendant knowingly engaged in sexual penetration of some type (digital, penile, or foreign object). The circumstances portion governs whether any consent was given. Thus, a defendant cannot escape punishment by saying he did not know no consent was given. Rather, the State only has to prove that the defendant ignored a substantial and unjustifiable risk that the victim did not consent.
Now, the average reader of this blawg might wonder what the big deal is. What difference does it make and why am I spending so much time on it? Alaska, like most other states, does not allow voluntary intoxication to be a defense to a crime. (There is a limited exception in that it can be a defense to an intentional mens rea. This has the practical effect of lowering crimes - first degree murder becomes second or manslaughter; burglary becomes trespass, etc. While it is a legal defense, I must say that it has not worked in the cases I have tried, nor am I aware of it having worked. Any lawyers with different results are free to post their stories in the comments section below). I can say, based upon almost seven years of practice throughout this state, handling a great many sexual assault cases, that extreme alcohol abuse is the norm for most Alaska sexual assault cases.
It is a bit different in some of the bigger cities, but the typical sexual assault in Alaska happens at drinking parties, events, whatever. To give an example, I know of a case in Kotzebue in which a young woman went to a drinking party. She drank to the point of blacking out. The next day, she learned that there had been some pretty wild sex seen by several people the night before. She began asking around and discovered, to her horror, that she was the person involved. She pressed charges, claiming she would have never consented to such sexual penetration. The fellow involved was about as drunk as she was. He went to trial and was represented by a very good attorney. Unfortunately, he was convicted.
Now, maybe it's just me. Maybe I'm just a softy, a liberal, or whatever. But I cannot for the life of me equate what happened at that party with strong arm rape. I just cannot. And I don't think that somebody should get 25 years in prison for doing that.
So I would make a suggestion: the Alaska Legislature should make the mens rea of sexual assault intentional with regard to conduct and knowing with regard to circumstances. This would mean that in order to be convicted, the State would have to prove that a defendant intended to sexually penetrate someone (or sexually touch someone, for a lesser degree of sexual assault), and that the defendant knew that person did not consent. This change would focus upon what the Alaska Legislature ostensibly intended to focus upon: the sexual predator. It would, if followed, remove drunk sex from the justice system but would indeed catch those who know that the victim does not consent.
This would also have the effect of lowering Alaska's crime statistics so that we might not be the state with the highest rate of sexual assault. While this may be seen as cheating, i.e., changing the definition, I think it would also provide a more accurate picture of the rate of sexual assaults in Alaska. For years, the majority of sexual assaults in this state have been drunken sexual encounters coupled with regrets the next day. By making this change, the Alaska crime statistics would reflect more of what most people would consider to be true sexual assaults.