MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 12, 1995 The Committee on Judiciary was called to order at 7:04 a.m., on Wednesday, April 12, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: None GUEST LEGISLATORS PRESENT: Assemblyman Jack D. Close Senator Mark A. James Senator Raymond D. Rawson STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Lt. Stan Olsen, Legislative Liaison, Las Vegas Metropolitan Police Department Susan Dart, NASW Francis Gillings, citizen David F. Sarnowski, Deputy Attorney General, Criminal Division Elizabeth Livingston, Nevada Women's Lobby Nancy Tiffany, Division of Parole and Probation James J. Jackson, NSPD Donald S. Mello, Director, Administrative Office of the Court Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence Lucille Lusk, Nevada Concerned Citizens Patricia Justice, Legislative Representative, Clark County Janine Hansen, Nevada Eagle Forum Chairman Anderson opened the meeting with testimony on Assembly Bill 405. ASSEMBLY BILL 405 - Revises provisions prohibiting sexual exploitation of children. Assemblyman Jack Close identified himself as the primary sponsor of the bill, brought attention to an amendment (Exhibit D) he was providing, and read his prepared testimony (Exhibit C). Chairman Anderson noted the Committee members did not have copies of the amendment on hand. Assemblyman Close reviewed the necessity for the amendment explaining the information about the incident at Wet n' Wild was not known when the bill draft was requested. He noted the context of the amendment was dealing specifically with that issue. He asked if he should detail the amendment at this time or wait until copies were available to the Committee. Chairman Anderson asked that he wait. Chairman Anderson read into the record a letter from Mr. Randy Bulloch supporting the bill and requesting amendments (Exhibit E). Assemblyman Close stated he had not yet received a copy of the new federal regulations but felt Mr. Bulloch had reviewed them and he agreed with Mr. Bulloch's suggestions; they were a step higher than his intention but had no problems with the suggestions if it was also the choice of the Committee. Chairman Anderson stated he had not been able to review the new federal legislation but thought it had more to do with mailing and distribution. The hearing was opened for questions from the Committee. Mr. Humke began by saying he was very happy to see the bill and outlined his history with the issue in question. He had carried a similar bill three times and commended Mr. Close for "going for" a felony on the first offense for possession of [pornographic] material. He then referred to Section 5, noting the age factor had been a problem in the past. He explained age 16 is the age of consent to engage in sex in Nevada and noted Mr. Close was using the age 18. He asked Mr. Close if he saw any problems with two different ages for the similar acts. Mr. Close responded he recognized there were some legal implications as to when an individual can participate in sex situations and his concern is the involvement of the procurers of pornography and who they include in their videos. He felt there is a separation in the bill as to who is included and he thinks "under age 18" is a reasonable level not to participate in the [pornographic] activity even though persons aged 16 can participant [consent] to the act. Mr. Humke explained if age 18 were used for the purposes of child pornography the critics would say a male of 18 could legally have sex with a female 17 when no pornography is intended. He asked if the age for consenting to engage in sex should be changed from 16 to 18; a change he has no problem with. Mr. Close explained his intent was not to get involved with that aspect due to its controversial nature. His concern was to restrict youths in the publication or duplication of pornographic activities. Chairman Anderson registered his concern about increasing the age from 16 to 18 relating an example of a former assemblyman's own early marriage many years ago. Mr. Humke did not wish to start a discussion but wished to express his own experience of past arguments in the matter; where it is legal for a 17 year old to engage in sex but making it illegal for a person filming it. "It does not compute." Chairman Anderson noted he perceived the age question is not the question at hand; but the person behind the camera and his intent to distribute is the purpose of the bill. He continued raising the age to 18 would bring another set of problems the committee may not want to get into. Ms. Steel asked if the wording "for any unlawful purpose" replaced " for any purpose" in Section 5 would increasing the age to 18 be more palatable. Mr. Close responded he had no problem with that; it was an interesting concept. Mr. Carpenter echoed previous comments regarding the problems of changing the age from 16 to 18. He felt the importance of the bill was the change to a felony. He commented the sentence should be lengthened at the start to deter the problem. Chairman Anderson acknowledged the distribution of the memo (Exhibit D) reflecting Mr. Close's suggested amendment. Ms. Buckley asked about the definition of sexual portrayal in the amendment and how it would be differentiated for parents taking pictures of their child with their bathing suit half-hanging down. She commented how she was pleased to see Wet `n Wild had taken steps to stop the activity but wondered how they could stop the improper use of pictures while still allowing family pictures of children. She asked Mr. Close to comment on that as well as the definition. Mr. Close responded it is not the intent to go after the parents taking videos and thought the terms `lewd' and `lascivious' would not be something captured by the parent of their child. He continued the original bill has the definitions included to have exceptions and he had no problem if Ms. Buckley felt there should be an added exception. Ms. Buckley noted the terms `lewd' and `lascivious' seem to be in the definition as an objective test based on the picture as opposed to the intent of the person taking the film and asked if that was correct. Mr. Close stated "that's a good question." He continued it puts `it' back on the person behind the camera. He acknowledged the interpreter could make different determinations. The intent is towards the person behind the camera. Ms. Ohrenschall commented if an exception for parents was considered, care should be taken, and to remember there is a rare parent/step-parent who does abuse their child for sexual or monetary profit. Mrs. Monaghan, referencing the Coppertone commercial showing the child and puppy, stated, she (as a mother), has similar pictures of her children. She asked if someone had access to that kind of picture could it be used against her. Mr. Close reiterated the intent was not to prohibit parents from "doing that" and he would have no problem if the Committee would like to draft some type of exception to deal with the situation. Mr. Humke felt the bill represents some of the most difficult work the Committee will do. He supports the bill and supports strengthening the penalties but realizes the tough questions must be asked. Referring to the amendment, he believed there are safeguards built in for those loving parent photographers because there is an intent requirement in 200.710, Subsection 2 [new language.] It requires a person to knowingly engage in the activity which is proscribed. Similarly, 200.720, Subsection 2, which states "a person who knowingly promotes" protects the Sears photographer and the young dad. He continued, it is important for mere possession to be illegal because if there is no market for "this stuff, it doesn't get produced"; the end user must be punished for the laws to work. Noting Ms. Buckley's comments regarding what standard is used to judge whether or not the material is pornographic, he referenced Mr. Bulloch's fax noting the Miller Standard (U.S. Supreme Court case law) which sets up a community standard of determining what is obscene (a lower standard, a step below pornography.) He encouraged the Committee not to back away from the issue but felt Mr. Close had appropriately dealt with the subject in the amendments. He noted there is still some problem with the age-16 versus 18; one of the ages should be used for both child pornography and legal consensual sex. Mr. Carpenter stated the most important thing was to increase the penalty; care must be taken in trying to determine more definition in areas of moral issues. Mr. Close stated he appreciated Mr. Carpenter's comments regarding the penalty and his reason for not amending "that" was due to his experience in Ways and Means involving the prison system and he hoped alternate ways "to do that" will be found. He has no intent to try to legislate morality; he is trying to protect the children. Chairman Anderson commented the Miller Standard is a topic he is familiar with due to the interest of his students in the subject matter. He felt changing the age would not change the activities of teenagers. The Miller Standard allows different definitions for each community since it is based on the community's perception of decency. He voiced his concern the topic was something which should be discussed but he had some trepidation; therefore, the age issue should not be addressed. He acknowledged Mr. Humke's concern for the inconsistency in the law; but, he did not see it the same way. Mr. Close reiterated the amendments are trekking down a new direction because pornography has been depicted in circumstances when the individuals are not clothed. He continued a step needs to be taken into the area of the situation at Wet `n Wild. The photographer "walked" since the children were clothed. He added understood the purchasers of the films are being punished. The demand for the material must be stopped. Mr. Goldwater asked if there was commentary on the Wet `n Wild film or just pictures or if there was an identifiable prurient intent. Mr. Close stated he had not seen the video so had no personal knowledge; however, due to concern of officials and the consistent description from individuals, the children were depicted in ways which would be considered sexually stimulating to some people. Chairman Anderson commented his understanding was the films were not solely from Wet `n Wild but also from other events. Mr. Close agreed it was his understanding also. Chairman Anderson asked if this bill would preclude the taking of videos at events by news media for television. Mr. Close did not envision, from his judgement, the bill curtailing such filming. Chairman Anderson asked to clarify parents photographing the events would also not be guilty of a crime under the bill. Mr. Close stated he would not intend that. Chairman Anderson asked if a child becomes upset with a parent in later years could "Coppertone" type photographs be used as evidence of sexual abuse or lewd and lascivious conduct. Mr. Close responded it was not the intent of the legislation and not what he wanted it to be. Chairman Anderson commented it was "a minnow in a pond" but still is a concern due to recent cases. Ms. Ohrenschall wanted to point out (in response to constituent phone calls) a picture of a one-month old baby on a bear skin rug, though innocently taken by the parents, could be of prurient interest. She asked if such a picture should fall into the wrong hands would the situation be encompassed by the bill. Mr. Close responded he would need to yield to legal opinions. He reiterated it was not the intent of the bill and if the committee wished to deal with the concerns, please do so. He agreed there was a fine line but, referring to statements by Mr. Humke, felt "knowingly" was the critical distinction. Ms. Ohrenschall asked if, under the bill, it was shown the parent acted innocently the liability would be on the person who used the picture. Mr. Close again stated he would need to yield to a legal opinion. Mr. Perkins described his frustration in being unable to investigate and prosecute these types of crimes because the activity "didn't cross the line", as the statute is currently written. He feels the issue needs to be addressed but does not know what wording can be used without crossing into the baby pictures. Pictures taken by a pedophile may or may not show genitalia; may be clothed or unclothed. He suggested perhaps help can be enlisted from people, such as, John Lukins from the Clark County District Attorney's Office, who work with these sorts of things. He commented it [the problem] is not when children can engage in sex but preserving the act and exploiting it. Mr. Close agreed. Ms. Steel liked the bill and thought it important to protect children from people who would exploit them and hoped words could be fashioned so the parents are protected even should someone steal the photographs. The intent must be known in the legislation, even if an intent paragraph were included in the statute. Ms. Lucille Lusk, Nevada Concerned Citizens, wished to add a comment regarding JD Films and the Wet `n Wild situation in Las Vegas. The children were not willing participants; they were humiliated and embarrassed and the parents were very frustrated since there seemed to be so little they could do to help the children feel justice had been received. To address an earlier question [from Mr. Goldwater] regarding commentary or descriptive information with the film she stated the advertisement for the film implied pornographic material which made the intent of the maker clear. She asked the Committee do their best to find a way to craft an amendment to the bill to respond to the situation so young people know there is some protection from being, unknowingly, used in this fashion. Ms. Janine Hansen, State President, Nevada Eagle Forum, stated her appreciation for the careful and thoughtful consideration of the bill. She stated the Forum has been very concerned about pornography for many years and then referenced "Pornography's Victims" edited by Phyllis Schlafly (1987, Crossway Books), page 205, a portion of the testimony of Lieutenant Tom Rogers (Exhibit F). She continued to explain the book is compelling in describing how child molesters operate in using child pornography. She continued by referencing a report from the 1985 Commission on Pornography appointed by then Attorney General Edwin Meese and quoted from its overview, "Child pornography is not so much a form of pornography as it is a form of sexual exploitation of children. Actual children are photographed while engaged in some form of sexual activity, either with adults or other children; thus, it involves sexual abuse of a real child." Ms. Hansen felt this was the point as there is increased concern about child abuse and its rising numbers. She quoted from "The Family Tree" (Exhibit G) [second column, first and second paragraphs.] She stated police vice squads report 77% of the child molesters of boys and 87% of the child molesters of girls admitted imitating the sexual behavior seen modeled in pornography. She thought it important for definitions to be provided in the bill because it helps to set a community standard and felt those standards need to be explicit to protect the children from exploitation and abuse. She felt this is [the area] where the Miller Standard can be helpful. She then quoted the statement by Dr. James Dobson (Exhibit G) [second column, fourth paragraph] and stated it is also important to be aware of situations where parents/step-parents are involved. Mr. Francis Gillings, citizen of Sparks, Nevada, testified there were areas of the bill which scared him. He is for the bill, but would like to see better provisions as was mentioned earlier to protect innocent families. He stated the "bill is a Band-Aid, at its very best" and could be "a killer to good families." As an example he gave the instance of the picture his wife took of his son nearly 36 years ago showing his [son's] bare backside. He continued by stating "we're in the mess we're in because America turned away from God; and we did it in our government school system." He agreed the penalty should be a felony but thought the sentence should be increased to five years, minimum. He asked the Committee members to remember to look at Matthew 11:23-24 because "that's America, if we don't do something about it." Chairman Anderson closed the testimony on A.B. 405 and asked the record remain open for additional written communication. He noted the bill may be sent to a subcommittee. He then opened testimony on Senate Bill 192. SENATE BILL 192 - (Second Reprint) Makes various changes related to provisions pertaining to sexual deviants. Senator James testified the bill has been referred to as the sexual predator bill and what he had endeavored to do was to introduce a comprehensive bill dealing with the problem of sexual offenders and sexual predators. The bill is modeled after laws in New Jersey, Washington, Minnesota, Illinois, and several other states which have confronted the issue of these dangerous individuals and addresses the problem in several areas: enhances penalties for certain sex offenses; singles out people who commit sex offenses with a high degree of recidivism; and deals with the question of community notification. He continued by reviewing in detail the contents and provisions of the bill. He noted the sentencing changes in S.B. 192 had been included in the upcoming `sentencing bill.' In support of community notification he testified statistics show people who commit these offenses, and even less offenses which do not carry life terms, have a high potential to repeat their offenses if released from the prison system. Sex offenders can not be kept in prison forever and this bill gives people the right to know when a sex offender is released or paroled to their community. He felt the bill deals with the notification in an inventive way and noted Megan's Law is partly represented. The intent is to make people aware and able to protect their children. The bill also protects law enforcement from liability in notifying/not notifying and gives them some discretion. He wished to add that the bill originally set-up a level of treatment within the prison system and civil mental health organizations of the state. Due to the testimony before the Senate on the "iffyness" of treatment for sex offenders the sections were amended out of the bill. He felt the remaining bill sections are important for the state. He stressed the fiscal consequences were an important issue and were considered. The various agencies effected (Prison, Parole and Probation) were asked to assess the impact and he had received a fiscal note showing little impact in the next ten years. He stated some studies he had seen reflected additional fiscal impact may occur "down the road", particularly in parole administering the lifetime supervision law. He mentioned a memorandum circulated which indicated a continuing fiscal impact, beginning in 2006 through 2015, up to two million dollars. He stated he had talked to Rich Wyett (Parole and Probation (P & P)) and felt the study conducted [by P & P] was unrealistic since the numbers were based on each offender being granted parole at their first request, gave no discount to persons who would require full supervision "anyway", and did not use a realistic parole grant rate for sex offenders which is possibly about 30-35%. Using more realistic numbers would reduce the fiscal note about 70% and asked the Committee not to rely on the memorandum regarding the study. Chairman Anderson stated the Committee had not seen the memorandum in question and realized the parole and probation rate is about 23%, therefore the 30% would be high. He acknowledged Senator Rawson had joined Senator James at the table. Senator James explained Senator Rawson was interested in the bill and he had asked him to testify. Ms. Steel asked if the bill covers sexual offenders coming from other states once they have registered in Nevada. Senator James answered the bill only deals with notification when someone is released from prison. It does not deal with the issue of someone coming from another state who is required to register as a sex offender under Nevada's laws. He added the U.S. Attorney General has indicated, under federal legislation, they will be asking states to comply with the national standard for sex offender registration in order to secure the crime rates. He explained currently there is litigation and questions regarding what level of sex offender registration is possible, creating a limbo situation, so felt it was important not to put the provision in the bill. Future intent is to develop legislation to bring Nevada into compliance with the federal regulations if the state is not already in compliance. Chairman Anderson noted about 80% of the prison population in the United States are held in state institutions as compared to federal institutions and since the statute (under discussion) is generally for others than those using the mails so the sex offenders will occupy space in state prisons. Senator Raymond D. Rawson, Senate District 6, wanted to lend his support to this major bill. In his finance hearings discussions were held on what should be done in Nevada about sex offenders (particularly youth sex offenders) and a group of 67 who can not be treated due to lack of facilities or programs in Nevada were identified. It was found the 67 offenders committed 4,400 offenses, many upon young children (2-5 years old). No matter what is done the offenders will be placed back into society at some point and there is a very low rate of being able to change their behavior. Arizona has faced the issue recently; identifying 2,000 sex offenders and finding only 1,000 would be in prison at any one time. By implementing a stricter sentencing procedure, making them serve their full time, they have been able to put more into prison and have fewer on the street. He continued "we don't want to warehouse them" even though it may be part of the solution. He felt the bill "speaks well to it" [the solution]. He added he testifies throughout the country on "bite mark" cases, which are often sex offense cases, and therefore receives from the many states information on where the offenders have been moved to. Personally he appreciates this as his family could be at some risk due to his testifying. Mr. Carpenter reviewed Senator Rawson's statements regarding not being able to warehouse the offenders or rehabilitate them and asked what is the choice. Senator Rawson responded he thought it is a combination of keeping them in prison as long as possible and trying to develop programs which will change behavior. Eventually the offenders will be released and the next best thing is to warn or prepare the public. It may be a problem to some people to think some rights are lost, but there are good statistics and track records reflecting a high re-offense rate. Senator James agreed with Senator Rawson and added there has been much debate on these measures in other states and perhaps community notification is not perfect, but the alternative is to do nothing which is unacceptable. He stated if a successful treatment program is developed he would be the first to champion its implementation; but, just the opposite is happening now. He advised he was planning to advocate a study during the interim. He reviewed statistics in an article in an ADA Journal which reflected a person beginning as a juvenile sex offender will commit an average of 360 sex offenses in a lifetime; the problem is a sickness and that is why the system has not been successful in dealing with the offenders. Mr. Carpenter asked Senator James to explain how the lifetime supervision works. Senator James stated the bill does not set out a specific statutory procedure; it requires the Board of Pardon Commissioners to establish lifetime supervision to be administered by the Division of Parole and Probation and sets up a violation of lifetime supervision is a felony. [The bill] allows the process to be administered by regulation but does stipulate a level of supervision in order to protect the public. Mr. Carpenter asked if something, such as an ankle bracelet, would be needed. He was concerned if the offender was not highly supervised it would not work too well. He agrees with the idea; "we need to be willing to spend the money to protect the public." Senator Rawson explained part of the supervision is registration to know where the offenders are. He explained if there is a sexual offense the police first look to the known sex offenders and most of the time the offender is found within the group. By having lifetime supervision there would be a better track of the offenders; to keep better and more appropriate records. Mrs. Monaghan noted the statistics were frightening and asked if there were any identifiable predictors to catch the kids before they offend. Senator James responded when the question was discussed in the Senate he spoke with mental health officials and found there were some things being studied but there are disagreements over whether the possible predictors are effective. He continued one thing this legislature should do is to commission a study of this issue to develop a treatment program. Senator Rawson added if there were good predictors there would be less of a problem. He discussed some general areas of a child's home life and environment which could be a predicter but stated they are not good to predict who should "be taken off the street." Mrs. Monaghan stressed the importance of identifying the potential offenders to "break the chain." Senator James addressed the question of community notification being challenged constitutionality by describing the "Atway v. New Jersey Department of Corrections" where a federal judge struck down a portion [of the law] which applied retroactively to offenders who committed offenses prior to the effective date of the act (expos facto.) The decision was based on the law being so broad making it punitive and not just a protection of the public. He did not think the proposed bill [S.B. 192] would be unconstitutional under that judge's analysis since it insures a mechanism is set-up to tailor the community notification to the offender, not to punish the offender further. He added New Jersey currently has an unprecedented situation since their supreme court was reviewing the question and the Clinton administration and U.S. Department of Justice applied to advocate the constitutionality of the community notification, which is in the Megan's law. He hoped the information would not deter passage of this very important measure. Ms. Buckley stated her questions were about those decisions and would save her questions for Mr. Sarnowski. Chairman Anderson announced, during a wait for new testifiers to come forward, the intent of the Chairman to place A.B. 427, A.B. 405, A.B. 396, and S.B. 192 into a subcommittee to allow for equitable hearings. The subcommittee would be chaired by Assemblyman Perkins and include Assemblymen Humke, Buckley, and Steel as members. He recognized A.B. 427 and A.B. 396 have principal sponsors who are Judiciary Committee members and stated he hoped the individuals, though not subcommittee members, would participate in the discussions. Mr. David Sarnowski, Chief Deputy Attorney General, Criminal Division, introduced Senior Deputy Attorney General, Mariah Sugden, currently assigned to the legal section of the Department of Motor Vehicles and Public Safety. He explained the Department would have responsibility for administering sections of the bill; such as, registration requirements, repository on physical evidence, etc., and Ms. Sugden could answer questions in those areas. He stated he would limit his comments, primarily, to Section 9. He testified the Attorney General supports the bill, as amended, by the Senate. He continued Section 8 and Section 9 places a significant task before the Attorney General in working with the appointed advisory council for community notification. He reiterated Senator James' comments regarding the modeling of the law on laws of other states. It was his opinion and projection they will not be without controversy should they be enacted; however, the Attorney General stands ready, willing, and able to assist in developing adequate and constitutional guidelines and would make any effort to meet any challenge. He noted the federal law (the Jacob Wetterling Act) also probably will be challenged in various federal jurisdictions and added the Act requires the state of Nevada to come into compliance in three years; allowing another [legislative] session to "tune- up" the statutes. He continued the bill, unlike New Jersey's, is clearly regulatory and not punitive to the offender and noted Page 5, Section 9, Lines 40-42, as the area most subject to challenge; the retroactive applicability of the notice and registration requirements to law enforcement. Mr. Sarnowski offered to answer any questions. Mr. Carpenter asked if the laws are to protect the public why would they be declared unconstitutional and can not there be a punitive measure on a person after release from prison if it is for the protection of the public. He added the information provided, in these cases, reflected low rehabilitation and high repeat offenses and the need to protect the public. Mr. Sarnowski agreed the statistics bear out re-offense is likely to occur; however, the problem is of constitutional dimension in both the federal and Nevada State Constitutions. There are prohibitions against the enactment of expos facto laws which apply punishments without notice. He continued to describe the New Jersey case. He feels the controversy is the New Jersey legislature declared it regulatory but the judge decreed it was not. He stated he would be happy to provide material to the subcommittee and the legislature's legal counsel for review regarding the New Jersey (Atway) case. Chairman Anderson asked Mr. Sarnowski to provide the information to the Committee's researcher [Dennis Neilander.] Mr. Carpenter asked if a person was being sentenced after the bill is passed, and even if it was a punitive measure, could the public be notified after the release, and the law hold up. Mr. Sarnowski responded it would be less likely for the offender to prevail on an expos facto issue but there may be other reasons for it to be said it is a cruel and/or unusual punishment. Ms. Buckley asked if the Committee could receive copies of decisions from the other (possibly nine) jurisdictions having had rulings of unconstitutionality of portions of state's laws for review so the legislation can be crafted to reduce the risk of it being overturned. Mr. Sarnowski answered he was unaware of that many decisions. He is currently trying to obtain the one from the New Jersey state court system. The Atway case was decided by a federal district judge after the state court found it was not punitive. He stated he would try to obtain as much information as possible. Chairman Anderson stated Mr. Neilander indicated some of the decisions were in the possession of the research staff and Mr. Sarnowski may want to coordinate efforts. Ms. Buckley referenced Page 5, Section 9, Paragraph 3.c. which indicates "where there is a high rate of recidivism the public must be notified through means designed to reach members of the public likely to encounter the sex offender" and asked for an explanation of how it is envisioned to notify the public in the area where the offender lives. Would it include neighborhoods, blocks, schools, libraries, etc. Mr. Sarnowski referred to Subparagraph 3.b. requiring schools and youth organizations to be notified where the risk is only moderate. Subparagraph 3.c. covers,at least, the immediate vicinity of where the offender lives. He reviewed the reason for Megan's Law and how law enforcement enters neighborhoods to distribute notices, which, he added, is not without controversy. Mr. Manendo wished to let the Committee know he had had a BDR for this type of concern and to avoid duplication and to speed up the process had it withdrawn. He feels it is most important to the Committee to make the public aware. He described a personal situation in his neighborhood regarding an individual whose actions have caused his neighbors concern and they wished to know how they can find out about the person's background. He stated there is no way to notify the community if this individual is dangerous. Mr. Sarnowski wished to address Mr. Manendo's concern. A person could go to the Clark County District Court and obtain a public copy of a judgement or conviction of a sex offender, known to be living in their area, and make it a matter of public knowledge within the neighborhood and not "run a-foul" of the law; people do have access to public records and the right to speak. Mr. Manendo stated his neighbors' concern was what the repercussion would be to them if they did obtain information and did notify the neighborhood. Chairman Anderson thanked Mr. Sarnowski for his information and offer to work with the subcommittee and asked, due to the questions and conflicting testimony on this bill and several of the other bills [on the agenda] regarding the fiscal impact on the prison system, if he could aid in coordinating the development of a new fiscal note among Parole and Probation, the Attorney General, and the Governor's Office. Mr. Sarnowski responded "they" would try to cooperate in the venture, but as a technical matter, it was his understanding, the Governor's Office will not develop a fiscal note unless the request comes from the Committee. Chairman Anderson asked if he wished the Committee to send a letter to the Governor's Office requesting the fiscal note. Mr. Sarnowski answered in the affirmative. Ms. Nancy Tiffany, Unit Manager, Nevada Division of Parole and Probation, wished to testify on the support of the bill by the Division. She explained the people she sees, via her duties, being released into the community are "pretty scary" and she is not allowed to tell the community who will be living there; who may be involving themselves in community activities in order to prey on people. She stresses the strong support of her agency for community communication; that the veil of secrecy be removed. Pointing out on Page 5, Section 9, Lines 37-39, listing schools, and religious and youth organizations to be notified she stated something may be being missed as some offenders prey on the elderly or handicapped/disabled adults. She suggested it be considered to address those types of offenders in the bill. Chairman Anderson stated it was very disheartening when it is the weak who are victimized. Ms. Tiffany added offenders preying upon elderly volunteer at nursing homes in the hope their background will not be checked and also the parole officer will not know what they may be up to through actual employment. Chairman Anderson commented she was in a tough position and has his admiration. Mr. Goldwater wondered if her position was the position of the department. Ms. Tiffany responded she was representing the Division of Parole and Probation. Mr. Carpenter asked Mr. Sarnowski to be brought back to the witness table. Noting the question was also from Mr. Schneider, he asked, since there is really nothing which can be done to rehabilitate the offenders, could castration be legal. Mr. Sarnowski stated he was not prepared to address the question and could not give an answer; he could do research if Mr. Carpenter wished. Mr. Carpenter said he would appreciate it. Chairman Anderson stated it would be expos facto if done to persons currently within the system since it was not part of the original sentencing and also considering it could be considered cruel and unusual and asked if his understanding was correct and were there any other guidelines to be considered. Mr. Sarnowski responded there had been some research into the process of chemical castration, but as he is aware, the topic has not been broached here. Mr. Schneider noted the comments by Senator James and stated sexual offenses were serious bodily injuries and penalized with life-without and asked if there was a definition for serious bodily injury. Mr. Sarnowski replied there is not a statutory definition; however, through the process of litigation, definitions for the purpose for instructing juries have been developed. He offered to provide a copy of instructions which would be representative of those used in the state. Mr. Schneider asked how many sexual offenders are in Nevada. Mr. Sarnowski responded his agency does not have the statistics but thought the Department of Prison, and the Division of Parole and Probation had provided those numbers. He added there may not be a "good handle" on the number of offenders coming from other jurisdictions. He noted there is a registration requirement with law enforcement, but it is not known how many may not be registered. Mr. Sandoval in follow-up to Mr. Carpenter's question and Mr. Sarnowski's comments noted he had read in other jurisdictions chemicals were being used to reduce, not eliminate, the sex drive of some of the sexual predators and asked if Mr. Sarnowski could look into that and also the options some judges may be giving to offenders to use the chemical or be castrated in lieu of incarceration. Mr. Sarnowski replied he would try to provide the information. Ms. Stroth wished to comment on what she hopes the subcommittee will address. Regarding the substantial bodily harm phrase: a member of her family experienced being sexually molested and the emotional scars can last far longer than the physical scars. She hoped the subcommittee will look at the penalties relating to whether there was bodily harm. She commented to Mr. Sarnowski (and possibly as an area to address in the subcommittee) it seemed if the penalty was lifetime monitoring, legislation could continue punitive measures. She added she understood, in working with family abuse programs, the issue is not sexual drive but power and control, therefore, she was not convinced castration or reducing sex drive would solve the problem. Mr. James Jackson, Nevada State Public Defender, wished to compare Section 4, regarding lifetime supervision, with the prior draft of the bill. The original draft required counsel which has been removed. He pointed it out as a concern since the procedure for the individual to be relieved of the lifetime supervision is not as clear. He asked if it could be considered by the subcommittee. He wished it noted these cases can be just as frustrating to defenders as they are to prosecutors because of the lack of culpability people want to admit to. He offered his office's assistance for the Committee. Ms. Ohrenschall asked if lifetime supervision would include an order offenders could not leave the state of Nevada since leaving could cause difficulty in supervising the offender. Mr. Jackson agreed it could be a problem but would be in the development of the program by Parole and Probation. Restrictions are used now and he knew of no valid constitutional challenges. Lieutenant Stan Olsen, Legislative Liaison, Las Vegas Metropolitan Police Department, began testimony stating the Department was 100% behind the bill and submitted handouts to the Committee (Exhibit H). He wished to cover the issue of what occurs in a sexual assault, something he felt had been missed at some hearings. Police officers see the individuals "out there." As an example, he reviewed a recent incident involving a brutal sexual assault resulting in severe injuries to the victim. The offender had an extensive criminal background, coming to Nevada from another state. He stated at the time this law may not have applied to the perpetrator as a sexual offender; however, in the future if the law is in place, notice could be given. He noted other examples were included in the handouts (Exhibit H). Chairman Anderson asked Lt. Olsen to work with the subcommittee. Mr. Carpenter stated he felt the offender did not deserve to live; especially in a neighborhood. Chairman Anderson closed the hearing on S.B. 192, announced future scheduling changes, and called for a ten minute break. Chairman Anderson reconvened the hearing opening testimony on Assembly Bill 427. He noted there was a time constraint and wished the Committee to also process testimony on Assembly Bill 396, and Senate Bill 228. ASSEMBLY BILL 427 - Requires notification of certain persons before release of offender convicted of specified crimes related to children. Assemblywoman Genie Ohrenschall, acknowledged the time constraint, noting her testimony had been condensed to "hit the highlights." She testified in addition to the current form of the bill there are amendments she wished to propose. The first changes are on Page 1, Section 1, Subsection 3(a), Line 19, and Page 2, Section 1, Subsection 3(b), Line 3, and Page 2, Section 1, Subsection 3(c), Line 5, the provision, "or if they have testified at the trial or the sentencing hearing." The effect of the change would be to make the notification automatic. She continued persons confronted with an emotional situation may not realize they must make a written request thus allowing people having a direct interest in the release of an offender to be left out. The second change is on Page 2, Section 1, Subsection 3(c), Line 6 to add "before the offender is considered for early release." She wished to read a page of Lillian Hall's written testimony into the record (Exhibit I). Ms. Nancy Tiffany, Division of Parole and Probation, prefaced her comments; she had been asked by Bob Bayer, Director, Nevada State Prison, (testifying in Senate Finance) to voice his concern regarding the wording on Page 2, Section 1, Subsection 4, Lines 7-8, stating, "warden...give any notice...." She stated normally requests for notification upon parole are filed with the Parole Board; he does not have access and therefore would not know there is a request. Mr. Bayer hoped it could be clarified if [notice] was for an early release, escape, or expiration of sentence and if it were a release on parole it would be the Parole Board's duty to notify. Chairman Anderson asked the subcommittee to take into consideration a shared responsibility for notification and asked Ms. Ohrenschall if she agreed to the proposed change for purposes of discussion before the subcommittee. Ms. Ohrenschall responded she would agree to look at the raised consideration. She added there was another change she wished to have discussed regarding a problem when a person does not wish to make a request (in order to keep an address confidential often because of a stalking problem); to develop a provision to insure confidentiality of the addresses. Chairman Anderson asked Ms. Tiffany if information from her office regarding the addresses was normally made a matter of public record; could the prisoner be informed of who is being made aware of his release. Ms. Tiffany responded the Division of Parole and Probation does not release information about anyone's address, a victim, a perpetrator, or any other. She pointed out it is important to note the files float all over the system; they are stored at the Parole Board (she was not knowledgeable of their rules.) She continued she believed offenders are sometimes notified when there is a victim notification; not of the address, but of the person who requested the notification. She mentioned such information is also stored at the prison and those files can be loaned to various entities, sometimes by request. She agreed it is a concern. Chairman Anderson related his family, being a victim of a crime, are notified each time the offender is up for parole and the offender also knows they are being notified. Chairman Anderson ended testimony and left the record open for further written information for the subcommittee's consideration. Chairman Anderson opened the hearing on Assembly Bill 396. ASSEMBLY BILL 396 - Restricts granting of probation to persons convicted of certain sexual offenses involving children. Assemblyman Brian Sandoval, as the bill's prime sponsor, explained the genesis of the bill stemmed from his concern about the number of child victims of sexual deviants. He reminded the Committee about previous testimony from Assemblyman Nolan, and Senators James and Rawson revealing sexual deviants can assault hundreds of children in their own lifetime and considering the number of perpetrators, he found the number of victims frightening. He also reviewed previous testimony reflecting the perpetrators can not be cured, the recidivism rate is high, and the predators are very sophisticated by moving to new places when no further victims are available. He continued under current Nevada law some child rape cases are plea bargained to an attempted sexual assault allowing some to receive probation, immediately returning to the street. The bill is intended to prevent sexual deviants from returning to the street [on probation.] In consulting with the Washoe and Clark County District Attorneys and the Governor's Office staff a concern was raised about Section 1; the section was found to be very confusing, hard to apply, and would build a fence the defendant could not overcome. He stated it would not work and had no problem with amending the portion out of the bill. He continued the remaining portion of the bill would remove the opportunity for an offender who pleads to attempted sexual assault of a child to receive probation. He added Senator James had told him this was a good compliment to his (Senator James) bill since, due to heightened penalties for the rape of a child, there is a potential some cases could be plead down to an attempted sexual assault. This bill would guarantee those persons will serve some time. He has consulted with the District Attorney's Association regarding a fiscal impact and no fiscal note has been received; there should not be a large fiscal impact because most of the individuals serve time and there should be few added persons. Chairman Anderson wish to clarify the change would be to eliminate Section 1, Pages 1 and 2 and for that area not to be carefully examined by the subcommittee and their focus to be on Page 2, Section 3, Line 43. Mr. Sandoval affirmed the change; however, he would like the subcommittee to discuss the threshold of 14 years of age. He would have no problem if the subcommittee feels the age 16 years is appropriate, or a lesser age than fourteen. Mr. Carpenter thought the age should be a child, less than sixteen. Mr. Sandoval responded he thought it would be appropriate to make the age consistent with other provisions in statute which have been discussed. Mr. Perkins asked if Mr. Sandoval had the opportunity to gather data regarding how many cases, over a given period, were actually charged originally as a sexual assault then plead to an attempted sexual assault to give an idea about the numbers being discussed. Mr. Sandoval stated his research was through Mr. [Ben] Graham and numbers were not discussed as the majority of the defendants do not receive probation and do serve time. He reiterated his concern for those who do receive probation. Ms. Ohrenschall commented the children who were the genesis for her bill were raped by their father and he is doing time for only four counts of lewdness with a minor, reflecting extensive plea bargaining. Chairman Anderson stressed the importance of the subcommittee and asked Mr. Sandoval and Ms. Ohrenschall to be available to them in their deliberations. He stated he hoped the subcommittee would take into consideration the inability to rehabilitate the offenders and the age question. Chairman Anderson closed the hearing on A.B. 396 and opened the hearing on Senate Bill 228. SENATE BILL 228 - Revises provisions regarding enforcement of temporary and extended orders for protection against domestic violence. Mr. Donald J. Mello, Director, Administrative Office of the Courts, and Secretary to the Judicial Council of the State of Nevada started testimony by describing during his capacity of secretary he attended full council and regional meetings where he has heard concerns about Chapter 33 and recently about the lack of enforcement in adjoining communities. There are many persons living in one area and working in another in Nevada. This bill would require the order to give addresses of residence, work, schools, and child care providers and then the court would transmit the information to the appropriate law enforcement agencies having jurisdiction in the different locations. He explained Page 2, Line 22 clarifies the orders are enforceable statewide. Currently justice court orders are enforceable statewide; however, law enforcement, to some extent, is unaware of it. He explained persons living in one jurisdiction requesting assistance in a jurisdiction where they work are often referred to the local justice court to obtain another order, which is unnecessary. Chairman Anderson wished to clarify it was the court's ability to reach beyond county limits and not the local law enforcement agency. Mr. Mello confirmed his understanding. He added it already exists but is not widely understood. Chairman Anderson asked if it was the court's contention with this clarification it would be understood. Mr. Mello stated they were hoping that. Chairman Anderson referenced two statements. The first from the Nevada Network Against Domestic Violence (Exhibit J) and the second from the Committee to Aid Abused Women (CAAW) (Exhibit K). Ms. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, the statewide coalition of domestic violence programs in Nevada read her statement for the record (Exhibit J). She added it is very frustrating when someone obtains an order for protection and assumes the system works together only to find, if they live in a different county than where they work law enforcement may not be aware of the order and its service and therefore unable to make an arrest. She hoped the Committee would look favorably upon the bill. Chairman Anderson acknowledged Susan Dart, from the Network, was also in attendance and asked if she wished to come up to the table to provide testimony. Ms. Susan Dart, with National Association of Social Workers (N.S.W.), spoke to the problem of obtaining protection orders and problems faced by women in the matter and stated N.S.W. supports passage of the bill. Chairman Anderson noted no questions from the Committee. Ms. Elizabeth Livingston, Nevada Women's Lobby, had no more to add but urged support to pass the bill. ASSEMBLYMAN BUCKLEY MOVED TO DO PASS SENATE BILL 228. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED. Chairman Anderson assigned the floor statement to Mr. Manendo. Chairman Anderson referred the Committee to Assembly Bill 308 which was requested by the Washoe County Grand Jury and for which Ms. Shane provided a presentation on April 4, 1995. He asked Mr. Dennis Neilander to review the bill for the Committee. Mr. Dennis Neilander, LCB, stated there were no amendments suggested. Mr. Carpenter had a concern about making sure the rural areas would be covered by the state people and the counties covered by the local people and he believed the concern had been satisfied. He asked Ms. Buckley if she had an additional amendment. Ms. Buckley responded she had in her notes for Page 2, Line 44, after the word "authorized" to add "pursuant NRS 432B.325". Mr. Neilander explained he thought it was an amendment to clarify and was suggested by the Welfare Division, perhaps Tom Riley. He continued NRS 432B.325 provides "each county with a population of 100,000 or more shall provide protective services for the children in that county and pay the cost of those services." He reiterated he thought it was to clarify the issue raised by Mr. Carpenter. Chairman Anderson recalled it was not a substantive change to the bill. ASSEMBLY BILL 308 - Authorizes dissemination of records of criminal history to certain agencies which provide protective services to children. ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS ASSEMBLY BILL 308 WITH THE AMENDMENT ON PAGE 2, SECTION 1, LINE 46 TO INCLUDE "UNLESS OTHERWISE CONTROLLED BY 432B.325". ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Chairman Anderson asked if there was any discussion. Ms. Stroth stated her notes reflected someone (unknown) asked to delete, starting on Line 44, "authorized by court of competent jurisdiction" along with the added language. Chairman Anderson stated he did not have that note. Ms. Steel commented it appeared to her the wording, "authorized by court of competent jurisdiction", is a protection so the information is not disseminated by "just anybody who happens to work somewhere." I would feel comfortable leaving it in. Chairman Anderson remembered, per the discussion, it was the general consensus "the court of competent jurisdiction" was an important ingredient. Ms. Buckley recalled someone from the Division of Child and Family Services testified they were organized pursuant to NRS and not necessarily authorized by a court and wanted it changed. She wondered if Mr. Neilander recalled the testimony. Mr. Neilander responded he did and thought the way to approach it may be to say "Department of Human Resources and any county agency that is authorized by a court of competent jurisdiction or pursuant to NRS 432B.325." It would cover both the rural areas and the larger counties. Chairman Anderson asked for the motion to include the additional language "or pursuant to NRS 432B.325" on Page 2, Section 1, Subsection 5(n), Line 45. He asked for any other discussion. There was no further discussion and a vote was requested. THE MOTION CARRIED. Chairman Anderson assigned the floor statement to Mr. Carpenter. Chairman Anderson noted there was a bill draft request to be introduced and called upon Ms. Buckley. Ms. Buckley described the request which would clarify what would be appropriate for a lien on a mobile home with regard to the matter of attorney's fees. It had been separated from a larger bill. ASSEMBLYMAN BUCKLEY MOVED FOR A BILL DRAFT REQUEST TO CLARIFY LIENS ON MOBILE HOMES AND ATTORNEY FEES. THE MOTION WAS SECONDED BY MR. MANENDO. THE MOTION CARRIED. There being no further business, the meeting adjourned at 10:37 a.m. RESPECTFULLY SUBMITTED: _______________________ Jacque Sneddon, Committee Secretary APPROVED BY: ______________________________________ Assemblyman Bernie Anderson, Chairman ______________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 12, 1995 Page