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Legislators hear report on 'indecency' law rejection

Posted: September 14, 2011 - 9:35am

A legislative attempt last year to toughen Alaska’s protections against sexual assault and domestic violence included new efforts to prevent children under 16 years of age from receiving indecent, harmful material.

Proponents of the aggressive new law, sought by Gov. Sean Parnell and unanimously approved by the Legislature, said it was aimed at preventing those over 19 years of age from providing a minor, defined as someone under 16, with indecent material.

The new law, though, was overturned by U.S. District Court Judge Ralph Beistline, who said the law went well beyond what was allowed and would have also barred consenting adults from obtaining materials they had a constitutionally protected right to possess.

The House Judiciary Committee, meeting in Anchorage, heard a report Monday from Assistant Attorney General Anne Carpeneti on where the law went wrong.

“There’s a couple of ironies here,” she told the committee.

While Beistline found the law to be overly broad, 2010’s Senate Bill 222 had been “written to narrow the scope” of the existing statute barring distribution of indecent material to minors, Carpeneti said.

During the committee process in the House and Senate Judiciary Committees, the law had been extensively modified in an effort to ensure it only targeted pedophiles attempting to groom children for sexual abuse, rather than legal material for others as well.

Carpeneti said she thought the committee had done that.

“There were a couple of things that were disappointing with the process,” she said.

One was that the changes that were made were extensive enough that a representative from the American Civil Liberties Union at the committee meeting gave the opinion the additions to the statutes would “probably withstand constitutional muster.”

Beistline didn’t think so.

“If the Legislature intends this statute to only criminalize the grooming of children for sexual abuse, the Legislature can say so,” he wrote.

“Other jurisdictions have written statutes that survive constitutional muster, and the Alaska Legislature can follow suit if it desires,” Beistline said.

The other irony, Carpeneti said, was that the case wasn’t heard by the Alaska Supreme Court, but instead by a federal judge.

Alaska’s attorney general had asked the case be moved to the Alaska Supreme Court, where important decisions of how the statute would be interpreted and applied could be decided.

Carpeneti said Beistline agreed, but the Alaska Supreme Court declined to hear it.

In his ruling, Beistline seemed to agree the state’s top court was the best place to hear the case, writing that “without clear guidance” from the Alaska Supreme Court he was unable to find that the law had been narrowly tailored enough to address only the state’s compelling interests.

Beistline granted summary judgment earlier this summer for the American Booksellers Association Foundation for Free Expression in its case against the state.

Carpeneti said the there was no appeal being considered.

“I think we would not have a very good chance of prevailing in the Court of Appeals,” she said.

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