House Committee on Judiciary (02/05/2009)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	02/05/2009	ATTENDANCE

Time:	01:18 PM to 04:10 PM	Apuan	X
		Court	X
Place:	HCR 0107	Gardner B.	X
		King	*
This Meeting was called to order by		Miklosi	*
	Representative Levy	Pace	*
		Roberts	X
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	X
		McCann	X
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB09-1087 HB09-1163 HB09-1132		Witness Testimony and/or Committee Discussion Only Amended, Referred to Appropriations Amended, Referred to Appropriations

01:19 PM -- House Bill 09-1087

Representative Green, prime sponsor, presented House Bill 09-1087 concerning accrual of a civil cause of action arising from the commission of a sexual offense against a child. Current law allows a victim of sexual offense on a child no more than six years to file a civil claim for damages against the perpetrator. The six years begin running when the incident occurs or when a disability is removed (i.e., a minor reaches the age of 18 or a person declared mentally incompetent is assigned a legal guardian to act on his or her behalf). This is when the cause of action accrues. This bill modifies when the cause of action accrues to be six years after the date on which the victim recognizes the existence and cause of his or her injury and tells someone other than a licensed medical professional. The bill only applies to offenses for which the statute of limitations has not yet expired by the effective date.

Representative Green read an e-mail message from a victim of sexual assault and talked about the need for this bill. She explained her reason for excluding licensed medical professionals. The committee discussed prepared amendments L.001 (Attachment A) and L.002 (Attachment B). Amendment L.001 further expands the list of individuals who are excluded from witnessing an individual's account of sexual abuse for the purposes of a civil action accruing. The bill as drafted only mentions licensed medical professionals, but the amendment includes a person employed or volunteering with an advocacy group or assistance organization that works with victims of sexual abuse. The committee talked about the logistical problems around how a victim would inform another individual not excluded by the bill (i.e., a spouse, sibling, friend, or child) about the abuse.

01:37 PM -- Julie Pelegrin, Office of Legislative Legal Services, appeared to respond to questions about the waiver of doctor-patient privilege in current law versus that which is being amended by the bill. The committee discussed the potential of an implied waiver of privilege that occurs when a plaintiff's mental state is in question with regard to emotional damages. The committee discussed the types of disability under which an individual might be under current law and how a cause of action accrues when such a disability is lifted. Ms. Pelegrin explained the difficulty in determining when an emotional or psychological disability is removed. The committee also discussed the time when a victim of sexual abuse is ready to acknowledge their abuse.

02:02 PM -- Jeff Ruebel, Colorado Defense Lawyer's Association, spoke in opposition. Mr. Ruebel stated that the bill is dangerous precedent and the current system has more than adequate protections for victims. He discussed the problems faced by defense lawyers who are required to prepare an adequate defense, even if the cause of action accrues 30 years after the act occurred. He indicated that the bill could cause problems for corporations, nonprofits, and other organizations that deal with children. The committee discussed the problems faced by churches and other institutions if a long period of time is allowed to elapse before a civil action is filed. They also discussed the difficulties inherent in proving when an individual's disability is removed.

02:23 PM

Representative Levy announced that the bill requires more work and it would be laid over until February 19, 2009. Representative Green made closing remarks.

02:31 PM -- House Bill 09-1163

Representative C. Gardner, prime sponsor, presented House Bill 09-1163 concerning crimes in which the victim is a child. This bill makes a number of changes to laws concerning crimes against children. These include:

adding an element to the crime of internet luring of a child to include instant messaging or text messaging to the means by which an actor can communicate a subsequent prohibited description of sexual conduct to a child under the age of 15 or an individual the actor believes to be under the age of 15;
clarifying that the crime of internet sexual exploitation of a child applies to an individual the actor knows or believes to be under the age of 15 and at least four years younger than the actor;
clarifying that previous convictions for child abuse in Colorado or another state apply to the aggravated sentencing provisions for that offense;
making other clarifications with regard to extraordinary aggravating conduct related to child abuse; and
modifying the crime of sexual exploitation of a child by possession of sexually exploitative material to include the possession of one video recording of child pornography. Currently, it is a class 4 felony to possess more than 20 different items of sexually exploitative material and, under the bill, one video recording would essentially equal the current 20 items.

Representative C. Gardner distributed information about child pornography in Colorado (Attachment C). He mentioned that he would like someone to offer prepared amendment L.001 (Attachment D), which makes changes to the child abuse section of the bill. The committee discussed the reasons for specifying the types of electronic communications.

02:39 PM -- John Suthers, Colorado Attorney General, spoke in support of the bill. Mr. Suthers stated support for the bill from Colorado law enforcement. He discussed the passage of laws addressing internet-specific sexual predators and the prevalence of text messaging. The committee discussed the progression of various cases of internet luring of a child. They also discussed the penalties for sexual exploitation of a child by possession of sexually exploitative material.

02:51 PM -- Mike Harris, Jefferson County District Attorney's Office, spoke in support of the bill. Mr. Harris is an investigator with the district attorney's office specializing in internet sex crimes. He related details of the numbers of investigations and arrests made in Jefferson County. He talked about the differences between seeing sexually exploitative photos and videos. He stated his belief that videos are a catalyst that pushes individuals to offend. He discussed his experience investigating sexual exploitation of a child in which a perpetrator was allowed to go free because the graphic conversations happened over a cell phone and text messaging.

02:59 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke in opposition to Section 4 of the bill. Ms. Cain discussed the penalties for possession of sexually exploitative material. She stated that the bill makes an individual possessing a single video equivalent to a second offense of possession. The committee discussed the reasonableness of charging an individual with a class 4 felony for possessing a single video. Ms. Cain responded to questions about the sentencing requirements for a class 4 felony sex offender.

03:08 PM -- Wendy Schrieber, private citizen, spoke in support of the bill. Ms. Schrieber related details of her daughter's relationship with a sexual predator.

03:10 PM -- James Hernandez, County Sheriffs of Colorado, expressed support for the bill.

03:11 PM -- Lauren Croucher, Colorado Coalition Against Sexual Assault (CCASA), spoke in support of the bill. Ms. Croucher discussed the growing instances of using cellular phones to lure a child for sexual exploitation. She talked about the accessibility of cell phones to children and stated that it makes sense to expand these crimes to include text messaging. The added provisions add another tool in the toolbox to investigators and prosecutors. Ms. Croucher also supports adding out of state convictions to the list of extraordinary aggravating conduct that may be applied in child abuse cases.

03:13 PM -- Detective John Bowman, Colorado Association of Chiefs of Police, spoke in support of the bill. Detective Bowman discussed his experience as an investigator of child sex crimes.

03:15 PM -- Ted Tow, Colorado District Attorneys Council (CDAC), spoke in support of the bill. Mr. Tow discussed the bill section by section and responded to questions from the committee.


BILL:	HB09-1163
TIME:	03:44:44 PM
MOVED:	Roberts
MOTION:	Adopt prepared amendment L.001 (Attachment D). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

03:45 PM

Representative C. Gardner wrapped up his presentation of the bill and asked for a favorable recommendation.


BILL:	HB09-1163
TIME:	03:46:23 PM
MOVED:	Roberts
MOTION:	Refer House Bill 09-1163, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Court
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Excused
	Levy	Yes

Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

03:48 PM -- House Bill 09-1132

Representative Murray and Representative Priola, cosponsors, presented House Bill 09-1132 concerning the use of messaging systems to commit unlawful activity. This bill adds text messaging and instant messaging to the list of means to commit the crimes of internet luring of a child, internet sexual exploitation of a child, and harassment. Internet luring a child is a class 4 or class 5 felony, depending on the circumstances. Internet sexual exploitation of a child is a class 4 felony. Harassment is a class 1 or class 3 misdemeanor, depending on the circumstances. The bill also adds text messaging and instant messaging to the means of committing computer dissemination of indecent material to a child, a prohibited act for which a civil penalty may be assessed.

03:53 PM

The committee discussed the fiscal note.

03:56 PM -- Ted Tow, CDAC, spoke in support of the bill. Mr. Tow responded to questions from Representative Court about communications that begin via text messaging and then progress to internet communications.

04:01 PM -- James Hernandez, County Sheriffs of Colorado, spoke in support of the bill.

04:02 PM -- Kory Nelson, private citizen, spoke in support of the bill. Mr. Nelson originally raised the issue with Representative Murray and he wants to educate the public about the problem of internet and cell phone predators. He stated that California and New Jersey both currently offer this type of protection.


BILL:	HB09-1132
TIME:	04:08:04 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.001 (Attachment E). The motion passed without objection.
SECONDED:	Waller
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

04:08 PM

Representative Priola wrapped up the presentation and asked for a favorable recommendation.


BILL:	HB09-1132
TIME:	04:09:36 PM
MOVED:	Waller
MOTION:	Refer House Bill 09-1132, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Court
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Excused
	Levy	Excused

Final YES: 9 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: PASS

04:10 PM

Representative Roberts adjourned the committee.