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Questions about sex trafficking bill remain

ACLU says bill is poorly drafted, likely to be overturned

Posted: June 21, 2012 - 12:07am

Gov. Sean Parnell has signed a new law aimed at combating human and sex trafficking, but some provisions of the bill have raised constitutional questions.

Among a number of steps House Bill 359 takes is to rename the crime of “promoting prostitution” to be called “sex trafficking.” That shifts the focus of the blame away from victims to those who prey on society’s most vulnerable, the administration said.

“We believe that any child engaged in prostitution (under the age of 18) is being trafficked, and thus is a victim of a severe and serious crime rather than a prostitute,” Parnell said when he requested the bill.

After its unanimous passage by the Legislature earlier this year, it was signed into law by the governor Tuesday at a ceremony in Palmer.

Several legislators questioned the bill’s broad scope during debate, but none voted against it, even after legislative attorney Doug Gardner questioned whether it would withstand a constitutional review.

The American Civil Liberties Union of Alaska called the bill “well intentioned but ill written,” and predicted a certain court challenge and likely overturning.

One provision of the law would criminalize inducing someone to “engage in sexual conduct, adult entertainment, or labor in the state” by force, threat or deception and calls that “human trafficking.”

The ACLU’s Jeffrey Mittman said that could criminalize a wide range of activities that go well beyond that intended by the Legislature.

“We doubt that the intent of the Legislature was to redefine loutish lovers or overpromising employers as “human traffickers,” he wrote in a letter to Parnell recommending a veto.

Mittman said the bill wandered too far away from what any reasonable person would call criminal behavior, and asked the bill to be vetoed and the issue taken up again next session.

The bill also allows testimony in competency hearings to be presented by video or other means in which witnesses might not be able to be cross examined.

That’s what Gardner, director of Legislative Legal Services and a former Juneau district attorney, said may not withstand constitutional challenge.

“It’s almost certain defendants will litigate this issue, with the outcome an open question,” he said.

Parnell praised that aspect of the bill Tuesday.

“It also allows the use of simultaneous two-way video conferencing in cases where a witness is unable to testify in a courtroom,” he said in a press release announcing the bill signing.

Mittman went further than Gardner, and said because competency hearings are so important to the constitutional right to confront witnesses, the law was likely to be overturned.

“A court would likely rule that this provision violates the Confrontation Clauses of the federal and Alaska Constitutions,” Mittman said in his letter.

Sen. Bill Wielechowski, D-Anchorage, praised the bill, however for closing what he called a “loophole” that allowed trafficking prosecutions of those bringing victims into the state, but not those bringing victims from villages to Anchorage.

“Sex trafficking is one of the most serious and heinous crimes we are trying to fight in Alaska,” he said.

“It should not make a difference if you are transporting someone from the Lower 48 or within the state to engage in these acts.”

Mittman said the law was so flawed it was likely to allow defendants clearly guilty of heinous behavior to walk.

“Its clear they screwed up in drafting the new trafficking laws,” he said. “It’s a big fat mistake, and it needs to be fixed.”

He urged the Legislature next year to take up revision of the law quickly.

• Contact reporter Pat Forgey at 523-2250 or at patrick.forgey@juneauempire.com.

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