MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 24, 2003
The Committee on Judiciarywas called to order at 8:16 a.m., on Thursday, April 24, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. William Horne (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Joe Ward, Litigation Division, Office of the Attorney General, State of Nevada
Jodi Tyson, Nevada Coalition Against Sexual Violence
Mitzi Johnson, Girl Scouts of Frontier Council, Las Vegas, Nevada
Kevin G. Higgins, Regional Chief Deputy Attorney General, Office of the Attorney General
Sgt. Tom Keller, Cybercrimes Detail, Internet Crimes Against Children Unit, Las Vegas Metropolitan Police Department; and Supervisor, Cybercrimes Task Force
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office and representing Nevada District Attorneys Association
Leonard J. Pugh, Director, Washoe County Department of Juvenile Services, and President, Nevada Association of Juvenile Justice Administrators
Vice Chairman Oceguera:
I would like to call the Assembly Committee on Judiciary to order. [Roll called.] All the members should be marked present when they arrive. We will start with Senate Bill 397.
Senate Bill 397: Revises various provisions governing sex offenders and offenders convicted of crime against child. (BDR 14-441)
Joe Ward, Litigation Division, Office of the Attorney General, State of Nevada:
I am here to speak briefly on S.B. 397. The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, commonly referred to as the Wetterling Act, was amended by the [federal] Campus Sex Crimes Prevention Act. This bill will bring Nevada into compliance with the Campus Sex Crimes Prevention Act by requiring sex offenders to provide notice to each institution of higher education, as defined in the bill, where the offender works or is a student. “Student” and “worker” are broadly and appropriately defined in the bill. It recognizes that campuses are communities within communities with their own campus police. It will help ensure registration information is promptly made available to campus police and entered into the Nevada Department of Public Safety’s Central Repository Sex Offender Registry. The federal bill provides that unless the states come into compliance with this amendment to the Wetterling Act, they stand to lose 10 percent of the otherwise available Byrne grant money, which for Nevada equates to approximately $500,000.
Assemblyman Geddes:
Is kindergarten through 12th grade already covered in a different section of the law?
Joe Ward:
It is. It is basically part of the community covered by the appropriate law enforcement agency with jurisdiction over those schools. They will accomplish the community notification for those schools. The information is prepared by the local law enforcement agencies in the form of flyers. These agencies have a lot of discretion in preparing the flyers, but there is consistency throughout the local law enforcement agencies in Nevada. The flyers are provided to elementary schools, junior high schools, and high schools. The principals of the schools, I understand, keep a binder of these flyers. Any parent of any student can have access to these binders.
The tier level 3s, the most serious offenders, are the people with the highest risk of reoffending. The Attorney General guidelines help local law enforcement agencies have consistency in the way they notify people in the community that they believe are most reasonably likely to come into contact with these sex offenders. With tier level 3s, law enforcement agencies or representatives of those agencies go door to door to notify people in the community in their jurisdiction.
For tier level 2s, information is provided to various qualified organizations, including parks and recreation facilities, and organizations that have significant clientele of children and women. That information is also further disseminated through those organizations to their patrons. But the brief answer is that local law enforcement agencies already take care of the community notification, including the kindergarten through 12th grades.
Assemblyman Geddes:
Are the school district police notified or are they just covered through the local agencies?
Joe Ward:
They are covered through local law enforcement agency, which is also defined in Chapter 197 of the Nevada Revised Statutes (NRS). For example, the schools in Washoe County would be notified by either the Washoe County Sheriff’s Office or, if within the city proper of Reno, the Reno Police Department.
Assemblyman Geddes:
In the outlying communities, where there are community colleges or some satellite campuses of the community colleges, do those all have police forces or are they covered by the local law enforcement agencies? Would they go specifically to the campus with that issue?
Joe Ward:
I believe they don’t have campus police at the community colleges; they would go to the local law enforcement agency. Its jurisdiction reaches over the community colleges.
Assemblyman Geddes:
In the case where there isn’t campus police at a community college, would the person register with the local law enforcement agency? Or when they went to the community college, would they have to notify the police that they were employed at the community college? How does that work?
Joe Ward:
If they are going to work at an institution of higher education, which would include the community college as defined in the bill, that information would go to the campus police that are in existence for the university system. But here is where there is some overlap, which is a good thing; it is better to have overlap than a gap. It would also go to the appropriate law enforcement agency that has jurisdiction including the area where the community college is located. The local law enforcement agency would affect community notification for that community college. There would also be information shared immediately with campus police for the university system.
I say offender broadly because the bill covers offenders who commit crimes against children and offenders who commit sex offenses. Crimes against children are delineated in NRS 179D.210; sex crimes covered are listed in NRS 179D.410. The local law enforcement agency for that area would accomplish the notification and, assuming there is compliance with the law, the registration information is immediately sent from that local law enforcement agency that obtained the registration information to the Department of Public Safety’s Sex Offender Registry.
Assemblyman Claborn:
I have asked this question that last two sessions and I really have not been satisfied with the answers that I have been given. How would I go about finding out if a sex offender lives in my neighborhood?
Joe Ward:
There is another bill, I believe it is Senate Bill 218, that amends NRS 179B.250, which recognizes that on March 5, 2002, the U.S. Supreme Court overturned the Ninth Circuit Court of Appeals on a question coming out of Alaska as to whether or not its use of the Internet to disseminate information on sex offenders was punishment and thus a violation of the ex post facto clause. The United States Supreme Court said, “No, this is not a penal law and NRS 179B.250 is not a penal law.”
To answer your question, I understand that the Sex Offender Registry’s manager is currently in the process, in light of S.B. 218, of implementing a Web site so that anybody can contact or an obtain information with a zip code and determine whether or not a sex offender resides in that zip code area. I think there is other information but I can’t be specific as I am sure the manager of the Sex Offender Registry could be to answer that question. It is in the works right now to get a Web site up and running.
There is also a toll-free number, I don’t have the number memorized, that any citizen can call and obtain, if there is a successful search, certain information back from the Sex Offender Registry.
Assemblyman Claborn:
About the second session or a couple of years ago, I asked the same question and I got a remark that all you have to do is pick up the phone and call the FBI [Federal Bureau of Investigation] where they do their fingerprinting and so on. I found out that wasn’t true; I never could find out. I did find out at the very end of this that I had to know where he lived and his social security number. I said that if I knew that I wouldn’t have to call the FBI. I have never gotten an answer, “Jerry, pick up the phone, call Metro or call somebody, and ask them to check this out.” This is my third session up here and I have never had an answer yet. I would like to have an answer, if somebody could ever come up with one, or a number that I could call to get some real advice.
Assemblywoman Angle:
As I am reading this bill [S.B. 397], it says that they are to notify the campus police if they are going to be a worker or want to be a worker on the campus or if they are going to enroll as a student. What about someone who is living close? This bill does not take care of that, if they move into the neighborhood or in the town or anything like that; it’s more for just those two purposes?
Joe Ward:
That’s correct. There is overlap, as I said earlier. For the offender, the registerable offender, who lives off campus, who is not as broadly defined as a worker or person who is going to be enrolled at the university, they still have to register with the appropriate law enforcement agency that would immediately send that information to the Department of Public Safety’s Central Repository Sex Offender Registry. Those law enforcement agencies, where the registration is accomplished, effect community notification. But for the person who is enrolled or is a worker at the university, in addition to that, there would be immediate notification to the campus police; you might have overlap.
You might have a situation where campus police notify people in the campus community and at the same time the local law enforcement agency would notify the same people at a child care center adjacent to the university. All you have there is the possibility of overlap, double notification. United States Senator Jon Kyl from Arizona, who introduced the Campus Sex Crimes Prevention Act, recognized that there are communities within communities. To avoid the possibility of an offender falling through a gap or a crack, it is better to have, on certain occasions, overlap.
Jodi Tyson, Nevada Coalition Against Sexual Violence:
I wanted to let you know that the Nevada Coalition Against Sexual Violence was first notified of the federal mandate to implement the changes into this section, specifically Section 1, subsection 5, “The duty to notify immediately the appropriate local law enforcement agency if the defendant…expects to…become [a student] or enrolls in an institution of higher education…” For example, here in Las Vegas we have a university system where the local law enforcement agency for the university campus surrounds the whole campus area. We now have an elementary school that is part of the university campus; that is a concern to us.
Also, I wanted to let you know that this federal mandate gives opportunities for women’s centers and people who are conducting prevention of sexual assault on campus to be able to do background checks of their own when they have volunteers on campus. For example, here in Las Vegas at the university, the women’s center had two people who volunteered to work in the SAFE Program (Sexual Assault Facts and Education) who were discovered to have been convicted of sex crimes. Therefore, we think it is very important this mandate came down from the federal government. It has been said that Nevada will be risking funds if a similar law to this isn’t passed.
Mitzi Johnson, Girl Scouts of Frontier Council, Las Vegas, Nevada:
We worked several sessions back with former Nevada State Senator Mark James taking the lead to get community notification to happen. We see S.B. 397 as filling in a gap. It is important that organizations like ours and other nonprofits feel we have a way to be notified when sex offenders are in our jurisdiction.
The question I heard just as I was walking in was whether an individual could obtain this information. When we crafted this community notification legislation originally, it was not intended for individuals; it was intended for organizations. Those organizations have to register with the local law enforcement to receive the notification. It has worked fairly well for us in Las Vegas. There are thousands of sex offenders; we have been managing the database on our own so that we can check our own applications and references.
We make sure where our girls are meeting; if there is a sex offender in the neighborhood, we can tell the leader, “Don’t let the girls out alone, there is someone in your neighborhood.” That’s the sort of information we have been able to get. It has been very sporadic and the law enforcement agencies have felt it was an extra thing to do. I am telling you that so you will know about community notification, how good it is or isn’t; it is important. I hope we can make it work as opposed to criminalizing every volunteer and making all of them be fingerprinted a dozen times. I would rather have information about the criminals available.
Vice Chairman Oceguera:
Any other questions on S.B. 397? Seeing none, I will close the hearing on S.B. 397 and open the hearing on S.B. 300.
Senate Bill 300 (1st Reprint): Makes various changes concerning technological crimes. (BDR 15-438)
Kevin G. Higgins, Regional Chief Deputy Attorney General, Office of the Attorney General:
[Introduced himself and submitted Exhibit C.] I was appointed to a judgeship in Sparks and will be starting judge school on Monday. On my last day, I wanted to appear on S.B. 300, which I believe is an important piece of legislation. Last session, this Committee was instrumental in passing a “high tech” bill, which has been very useful for law enforcement. It did several things:
We are coming this session to make a few minor changes, we are asking you to make a few changes, which will make this very helpful to law enforcement. The subpoena powers that were created are through the Electronic Communication Privacy Act (ECPA); the federal law specifically sets forth what can and cannot be obtained via subpoena and states can obtain those records if they have an authorizing statute. Last session, the Legislature created an authorizing statute. As part of the compromise with the other [house], we were required to do a few things that we were asked to fix this session.
One thing that we would like to do is eliminate the reference to the ECPA statute as it was in effect at the time. ECPA has been amended twice since the last legislative session and by removing this reference we will be able to take full advantage of the federal authorizing statute. For example, the amount of material obtainable by subpoena was expanded slightly. More than just name and address, a subpoena can now, for instance, ask for, if somebody is a dial-in user of an Internet service, the IP address that they dial in from, and the times they dial in. Usually, this is essential if we are trying to trace somebody back to find out who is using the Internet at a particular time. This is non-confidential information; this is not e‑mail content, by any means. But by removing that time deadline in the statute, we will be able to fully use the tools that the federal government has authorized the states.
Another good reason to eliminate the time provision is that several provisions of ECPA are due to sunset in 2005; it was amended by the PATRIOT Act of 2001. So if we take that time provision out, those sunset provisions will automatically sunset in Nevada without the need to come back to the Legislature once again. So, we are asking that the time limit be removed.
Another portion of the bill would eliminate the requirement that only felonies are subject to these kinds of subpoenas; that was part of the compromise. Unfortunately, there are misdemeanor crimes that could be committed with the Internet. Since we can’t subpoena that information, it requires that we obtain a search warrant. You may not be aware but there is actually a full‑time deputy in Loudoun County, Virginia, who drives back and forth to AOL several times a day to deliver several thousand search warrants a day from law enforcement all over the country. It’s a bit of an onerous process and by having the subpoena in place we can ask for that quite easily. Big Internet service companies are more than happy to provide the information that’s allowed with ECPA as long as they’re covered by an appropriate state subpoena.
[Kevin Higgins continued.] For example, we had a case that came up where there was account at the Treasurer’s Office that either had millions of dollars in it or had no money in it; it is used as a transfer account. They began to notice that a check, a debit, every month for $12.95 came out of this account, which of course wasn’t authorized and they couldn’t figure out what it was. It was a misdemeanor; it took us quite some time to figure out who was doing this. With the subpoena we would have been able find out that there was teenage boy in Silver Springs, Nevada, that had gotten a hold of a copy of the bank account information and was using the bond transfer account to pay for online pornography.
You are probably aware, you can actually use a check over the Internet if you don’t have a credit card; you give them the check number. I don’t know if it was through a process of elimination and guessing every possible account number in Nevada, but he had a copy of that account number and was able to do it. That was a misdemeanor; we couldn’t use a subpoena. We had to be fairly creative in charging this to make it a felony in order to find out what it was. It immediately stopped.
Another way this is commonly used is when people are being harassed on the Internet, receiving harassing e-mails. If it hasn’t risen to the level of the perceived violence to make it a felony, this [S.B. 300] would allow law enforcement to find out who <[email protected]> is that is sending threatening e-mail messages.
I remember two sessions ago, [there was a situation with] Senator Joe Neal. Somebody was sending him racist e-mail on his legislative Web account. We could have easily found out who that was with the appropriate subpoena. Most states use this tool; it is very effective.
Last session we spent a great deal of time explaining how you get e-mail content, I don’t think that is necessary today. Just to say, the federal law requires either a court order or a search warrant to get to the content.
[Kevin Higgins continued.] This is a civil subpoena. If we send a subpoena to an Internet service provider and they don’t want to provide the information, it’s incumbent upon law enforcement to file an order to show cause, go to the district court, and have the district court judge order the information be turned over. The protections for the service provider are there. This is essentially a tool that allows Internet service providers to give us this information without fear of liability.
In subsection 3 of Section 1, we would like to limit the costs that Internet service providers charge law enforcement to actual costs. Some unnamed national Internet service providers, because they didn’t particularly want to provide this information, charged outrageous costs in California to the California Office of the Attorney General, thousands of dollars, for allegedly having to do the research necessary to find out who <[email protected]> is. This [S.B. 300] would allow law enforcement to be charged the actual costs; we certainly don’t want anybody to be out-of-pocket on this when law enforcement pays for this sort of thing. But they need to be the actual and reasonable costs, not a made-up number that the state can’t afford.
Sections 2 and 3 of the bill seek to change a definitional item in the luring statute. It is now a crime to use the Internet to lure a child, depending upon the lurer’s intent; these people are sometimes referred to as “travelers” because they will come to our state to meet children in casinos and motels. The highest penalty is reserved for those that do it with the intent to engage in sexual relations.
It is a mid-level penalty if obscene materials are transmitted and used to lure a child out of their home. This is often the method that pedophiles use. Once the relationship is established, they start e-mailing what you and I would consider obscene materials in an attempt to inure the child into the idea that sex with adults is appropriate.
Obscene materials, the word “obscenity” is subject to a lot of U.S. Supreme Court case law. Justice Brennan opined, “I know it when I see it.” So when you charge someone with obscenity, you basically end up having to have two trials. You have a trial to determine whether or not it’s obscene, whether it offends local community standards. That can be different between Elko, Nevada, and Las Vegas, Nevada, or Reno, Nevada, as to whether it violates community standards. Once you reach that level, then you have to find out if they used it.
This bill would ask that the word “obscene material” be substituted with the phrase “materials harmful to children.” That’s a lesser standard that’s already in statute. For example, this is the statute that determines for the 7-11 those materials that have to be behind the counter; adult magazines have to be behind the counter. There is a much broader range of materials. It will still be necessary for law enforcement or the district attorney to prove the materials fall into this category, but it is an easier standard to meet.
[Kevin Higgins continued.] One of the big reasons that the luring statute was proposed is because we did not want to wait in Nevada until one of these “travelers” had actually engaged in sexual relations with a minor in order to charge them with something. We did not have a misdemeanor kidnapping statute. This would allow us, if we catch, if mom or dad find out that their son, it happens to sons as well as daughters, has been engaged in e-mail conversation with some online person and they find obscene materials or materials harmful to minors, hopefully, we would be able to charge them [the online person] directly without having to wait for any awful thing to happen.
The last part of the bill [S.B. 300], at the suggestion of the Legislative Counsel Bureau (LCB), would bring conviction of these luring or charging of the luring type crimes into the part of the education code that allows school employees to either be suspended or terminated. There is a list of these immoral acts set out in the school code that automatically allow that kind of thing to happen. A conviction or charging under the luring statute and cyber-stalking statute and some of the new statutes would bring that into compliance. Unfortunately, having one of the largest school districts in the country in Las Vegas, we are all aware that some teachers enter into inappropriate relationships; this would be another tool to get those people out of the school district as soon as possible.
Sgt. Tom Keller is [ready to testify] in Las Vegas; he is with the Las Vegas Metropolitan Police Department, Internet Crimes Against Children Unit. They have successfully used many of these statutes to protect our children. I believe he is available to testify as well.
Sgt. Tom Keller, Cybercrimes Detail, Internet Crimes Against Children Unit, Las Vegas Metropolitan Police Department; and Supervisor, Nevada Cybercrimes Task Force:
[Introduced himself.] Just in support of what Mr. Higgins said, on the administrative subpoena side, I wanted to explain what we do. One of our concerns has been, as Mr. Higgins stated, we can’t subpoena for a misdemeanor. In cases where someone gets harassed on the Internet… We had a situation about six months ago, where a lady had dated a guy, and he started sending her e-mails that were harassing because she broke off the relationship. It progressed to a stage where he was actually going on online, pretending to be her, discussing sexual adventures with strangers, and giving out her home address, phone number, and things of that nature. This is the kind of crime that if we had been able to… In this particular case, we were able to catch the individual and he is pending prosecution. This is the kind of case when these issues start, if someone just came to us and said, “I am getting these harassing e-mails from my ex-boyfriend, I think it’s him but I am not sure,” we wouldn’t be allowed to subpoena that information because it would only be a misdemeanor initially, until it arises to the level of harassing and stalking.
Our other concern is that there are people who may feel that ISPs, Internet service providers, have a problem with this. One of the things that we do in every case… Every ISP, even the small ones, are aware of the laws under the federal statutes; they also usually have a liaison for law enforcement. What we do is we contact the ISP and ask them if they will accept an administrative subpoena from Nevada, which usually means, “Do they conduct business in Nevada?” If they do conduct business in Nevada, then we send them the administrative subpoena along with a copy of the law, so that they are aware of what our powers are and that we are asking for things that we legitimately can ask for.
Vice Chairman Oceguera:
Any questions for either of these witnesses? Anyone else wishing to testify on S.B. 300, in favor or against? We will close the hearing on S.B. 300 and open the hearing on S.B. 394.
Senate Bill 394: Revises various provisions relating to certain criminal statutes. (BDR 15-1026)
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, and representing Nevada District Attorneys Association:
[Introduced herself and submitted Exhibit D.] Senate Bill 394 is in response to a couple of Nevada Supreme Court cases that declared unconstitutional certain statutes, the first of which is statute of annoying and molesting a minor. The Nevada Supreme Court declared that unconstitutional, so the first part of S.B. 394 is the attempt to revitalize that statute in a constitutional manner.
Senate Bill 394 also has included in the statute of unlawful contact with a child the definition of enticing a mentally ill person. We have become increasingly more involved with that type of situation as they all are vulnerable to the sexual predator.
Finally, the last part of the bill is in regards to methamphetamine manufacturing. That again was in response to a Nevada Supreme Court case that declared the possession of a majority of ingredients unconstitutional. The Nevada Supreme Court was very specific in that particular case as to what it would take to make constitutional that particular statute; Senate Bill 394 follows their advice extremely well. It’s also basically in response to mobile methamphetamine labs, if you will, where all or many of the ingredients are readily apparent, but they have not actually started the process of manufacturing methamphetamine. The statute also applies to when the ingredients are ready, they are preparing the lab, they have a majority of the ingredients, it’s clear that there is no other purpose other than manufacturing methamphetamine, and yet they are not simply caught in the act. As the statute reads now, without this, they must be caught in the act of manufacturing methamphetamine.
Vice Chairman Oceguera:
Would you go over this section in more detail? As I am reading this, “the district attorney may present expert testimony to provide a prima facie case that any chemical, whether or not it is a chemical identified in…is commonly used in manufacturing or compounding such a controlled substance,” but when I look down these chemicals, all this is under your kitchen sink. How do we go about that, exactly?
Kristin Erickson:
First of all, it would certainly take a common sense approach. If you don’t have the beakers, the tubing, and odd strange other necessities to manufacture methamphetamine, certainly there would not be a prosecution for that. I believe your concern is taken care of in the statute, specifically on page 29, line 16, “possess with the intent to manufacture or compound a controlled substance other than marijuana.” So we have to prove that you intended to manufacture methamphetamine. The key to criminal law is criminal intent and if there is no criminal intent, it is not a crime. You must have that bad intent to manufacture methamphetamine. I believe that language is included because there are certain chemicals that are not available to the public. When they are available in mass quantities, the only real purpose is to manufacture methamphetamine. But generally, one chemical is not found in isolation; there is a very distinct group of chemicals that are found and really only serve one purpose, especially in the quantities given.
Finally, we do have one amendment (Exhibit D) in regard to three crimes that were omitted from the sexual registration requirements. Currently, Nevada Revised Statutes 179D.410 specifically leaves out or exempts from the registration requirement the teacher-public statute. If a high school or middle school teacher has sexual relations with a student, it is a felony, and we would like that person to have to register as a sex offender. Likewise, there is also statute regarding sexual conduct between certain employees of colleges or universities and students; we would like that person to have to register. That particular statute, however, is very specific; the statute deals with university professors and the victim must be 16 or 17 years of age. So if they are 18 [years] or older, they are not subject to that statute. The third offense that we would ask to be included in this sexual offense list is conspiracy to commit any of the listed offenses, such as conspiracy to commit sexual assault or conspiracy to commit lewdness with a child.
Vice Chairman Oceguera:
Do you know the Nevada Supreme Court case for the chemical manufacturing?
Kristin Erickson:
I believe it is Burdge v. State. It was very specific as to the requirements that would bring the statute into compliance. The key was the intent element; we have to prove that they intended to manufacture methamphetamine. Simply having the chemicals under your kitchen sink is certainly not adequate.
Assemblywoman Angle:
The definition of mentally ill, would that encompass one who was mentally deficient, like a mentally retarded person? Sometimes they are not minors any more; they have a mentality of a child. Is that meant to cover that or do we have a different terminology for that?
Kristin Erickson:
There is a definition of “mentally ill person” within this statute; it’s on page 4, line 17, where it defines a mentally ill person as “a person who has any mental dysfunction leading to impaired ability to maintain himself and to function effectively in his life situation without external support.” In my interpretation, it would include somebody who is mentally retarded and has lesser intellectual functioning.
Assemblywoman Angle:
Would this mentally ill person have to be declared so by a court? I know of people that live with their families, they are not necessarily declared that legally, and yet they are subject to predators. I am just wondering how technical this definition has to be and if it has to be a court-assigned definition or if the family knew it.
Kristin Erickson:
It is my understanding, and of course this is arguable on either side, that they would not have to be declared dysfunctional or mentally ill by a court. Given the definition, the fact that they live with their parents is external support. There are many people that without the support of their parents or government agencies could not live on their own. So I believe they would be included under this statute.
Assemblywoman Angle:
There are some who do live on their own, they are able to function, but they are still subject to predators. Would they be covered, or now are we getting outside of that realm?
Kristin Erickson:
Again, all the factors would be considered. It would be a question of fact for the judge or jury to decide as to any external support such as government support, such as housing is concerned. Do they receive government support such as food stamps? Can they work; are they able to work? Do they receive help from their parents? It would be an issue where both sides can present their evidence as to why they are mentally ill or why they are not. It would be up to the judge to decide.
Assemblyman Carpenter:
I have a question on Section 3, page 4, where it says, “a child is under 16 years of age and who is at least 5 years younger than the person…” How would that work, such a limiting factor?
Kristin Erickson:
I believe that is in response to the high school romance situation where you may have a 20-year-old dating an 18-year-old. That requirement places that child as 15 [years old] or younger and the perpetrator 20 years or older.
Assemblyman Carpenter:
It leads to more questions. It might be all right, but I have a real question on it.
Jodi Tyson:
I have a few things that I would like to discuss. On page 29, Section 29, subsections 1 and 2, this might encompass what I am about to say, but I do want to implore upon you that under all of the drugs that are listed on page 30, ecstasy is not included on this list. Although, in some circumstances, it might be able to be covered under “any other chemical which is proven by expert testimony to be commonly used in manufacturing or compounding a controlled substance…” for the issue of a crime, I would implore also to include ecstasy. The chemical name for that is 3,4-Methylenedioxymethamphetamine. While it says under subsection 4(u), 3,4-Methylenedioxy-phenyl-2-propanone, I would like to request that ecstasy—3,4-Methylenedioxymethamphetamine—be included in that list.
My reasoning for that is we see ecstasy use on the rise and especially in the 8th, 10th, and 12th grade levels, which is the highest risk for sexual assault. We have seen from 1998 to 1999, ecstasy use rose by 33 percent among 10th graders and by 56 percent among 12th graders. It is very important for sexual assault and its prosecution to be able to include not just what we would consider to be predatory drugs but all drugs that are commonly used by offenders to commit sexual assault. Ecstasy, although not generally thought of as a predatory drug, is a predatory drug when given to minors with the intent of disabling them for the purposes of having sex with them later.
The other thing I would like to bring out is that the Nevada Coalition Against Sexual Violence is getting ready to embark upon a year’s research for a guidebook dealing with sexual assault that happens within developmentally disabled communities. Also, I would like there to be some discussion about changing the [words] “mentally ill persons” to “developmentally disabled persons.” The reasoning for that is the same questions that Assemblywoman Angle had, not concerns that they wouldn’t then be included, but there are a few instances that might not be considered mentally ill in a court situation.
One such instance might be cerebral palsy, which would not be considered to be mentally ill but to be developmentally disabled. And they are often the victims of sexual abuse and sexual assault. The developmentally disabled community is at the highest risk for sexual assault and sexual abuse. When we look at teenagers or adolescents, 1 in 4 girls and 1 in 6 boys, [have experienced sexual abuse or assault] by the time they reach [the age of] 18; it’s much higher within the developmentally disabled community within their lifetimes. Therefore, we would encourage you to look a little bit beyond those that consider themselves to be mentally disabled and look at developmentally disabled community.
Vice Chairman Oceguera:
Could you provide those amendments you have requested in writing to our legal staff? We probably won’t consider this bill today, so we can discuss those possible changes at another time at a work session.
Jodi Tyson:
I would be happy to have them to you by this afternoon.
Assemblyman Mortenson:
Here is another instance where I would be jail if these laws had been in existence when I was growing up. I met my wife when she was 15 years old; I began communicating with her. My wife of 40-some years, I should say. I communicated with her for 4 years before we got married when she was 19; I was 8 years older. As I said, it has lasted over 40 years. This is a little bit strong, these rules.
Assemblyman Geddes:
Going back to my chemistry, I am looking at all the new definitions of chemicals and I am wondering why we put optical isomers in everywhere. If we are going to be looking at making changes, I would recommend that we strike the word “optical” from everywhere and just leave “isomers,” because it would cover other isomers that would exist and could be of concern; “optical” is very limiting and doesn’t really tell us too much.
Vice Chairman Oceguera:
Where are you seeing that?
Assemblyman Geddes:
On page 30, as we go through all the restricted chemicals, we mention the chemicals, their salts, their optical isomers, and their salts of optical isomers. There are other isomers—structural isomers and racemic isomers—optical is just one measurement technique that really doesn’t tell us much.
Assemblywoman Angle:
I have been involved with the predatory drug demand reduction program in Nevada. I was wondering if Ms. Tyson, along with her ecstasy amendment, could include others such as the date rape drug, MTB, is that the one? There are several of those, if you could research that and include all of those. I think you are on to something here with the predatory drugs. I was wondering if you would research that a little and make sure that we get all of those because ecstasy is just the one that is on our radar, but there are several.
Jodi Tyson:
I would be happy to look through this again. We had to refer to a physician in our community just to make sure that I wasn’t leaving it out just by the combination of a couple that are already listed. But I am happy to see one for 1,4-Butanedyl, which is the cousin for GHB (gamma hydroxybutyric acid). Those we took a look at, recognized them right away, I would be happy to defer this list again to our local physician and have her take a look at it to make sure that we are not leaving out a few.
Chairman Anderson:
Let me ask my favorite question. Did you have the opportunity to bring these issues forward on the Senate side when the bill was originally heard?
Jodi Tyson:
No, actually, we were not able to be here at that time; we had a conference.
Chairman Anderson:
Did you make any attempt to make the Senate aware of your concerns about the bill at all?
Jodi Tyson:
Actually, it was just after the initial testimony that we then deferred it to our physician to have them look at it. That’s when they let us know. I would have been here otherwise to talk about the definitions of mentally ill persons and developmentally disabled persons. But it was after that we also found out that ecstasy was not included in the list.
Chairman Anderson:
I think it goes both to your questions about the chemical and the developmentally disabled persons. No one raised the concern about developmentally disabled individuals to be included in the legislation initially on the Senate side in their discussion?
Jodi Tyson:
That’s correct.
Vice Chairman Oceguera:
Is there anyone else who would like to testify on S.B. 394? Seeing none, we have a few questions. If you could get those changes that you would like to see so we can debate them in our work session, I’d appreciate that.
We will close the hearing on S.B. 394.
Let’s open the hearing on S.B. 286.
Senate Bill 286: Provides for supervision of certain juvenile sex offenders placed in treatment programs in this state. (BDR 5-1086)
Leonard J. Pugh, Director, Washoe County Department of Juvenile Services, and President, Nevada Association of Juvenile Justice Administrators:
[Introduced himself.] The origin of this bill occurred back in December 2002, when I was at a meeting with some officials from Washoe County School District in the Student Services Division. We were talking about the development of an individual education plan. They made me aware of an 18‑year-old who was a resident of a community group treatment home. It was their understanding that this 18-year-old had been allowed to leave the treatment home and was now residing in Washoe County because he was over 18 years old. Obviously, that created some concern because I know that the treatment home he was in is for juvenile sex offenders.
I did a little homework, looked into that, and raised the issue at the Northern Nevada Juvenile Sex Offenders Task Force meeting. At that point in time, it appears as if that may have been the case.
Fortunately, since that time, research has indicated that was not what happened. What happened was they had trouble with a couple of their residents that had turned 18 years old. As a result of that, in their efforts to get them returned to the sending states, the sending state pleaded and begged, it took quite a while to get those juveniles returned. In one case, it took over 30 days; I think the treatment home ended up sending that kid back to a hospital setting that’s more secure in Utah in the interim. It did raise the issue that the opportunity does exist. There have been other occasions when juvenile offenders that have been sent to Nevada from other states, when they reach the age of majority, sometimes their cases are terminated. It would be foolish for someone to do that with a sex offender, but the opportunity still arises.
I am aware of the fact that if we send a juvenile sex offender out of state, it occurs most often when we send kids to Texas, that they require us to agree that child would be returned to Nevada if there were any problems. Currently, the Interstate Compact on Juveniles does not require a sending state to request courtesy supervision of a juvenile. So when I discussed some legislation with LCB, we determined that we could not change the language in the Interstate Compact on Juveniles because it has to be the same for every state that agrees to it.
But we decided that perhaps what we could do is require those group treatment homes or residential treatment centers that accept juvenile sex offenders from out of state to require the sending state to request courtesy supervision before they accept those juveniles. Now what this will allow us to do is become involved with the treatment programs, supervise those juveniles on an on-going basis, and deal with behavioral problems on an on-going basis while they are in residence. Also, if they reach a point where the treatment program feels they should be terminated from that program, this will allow us to contact the sending state, seek immediate jurisdiction to arrest that child, and, through the Interstate Compact, get their return to the sending state done in a more expeditious manner than currently occurs.
To give you a brief case example, last year there was a juvenile sex offender in a treatment home that on one occasion left the facility at 8 a.m. and did not return until 10:30 p.m. No one knew of his whereabouts during that time. [Leonard Pugh continued.] Nothing could be done from a legal standpoint because there wasn’t courtesy supervision and he was over the age of 18. That same juvenile, a couple of weeks later, left the program, returned several hours later, and was seen leaving a vehicle of another would appear to be a juvenile. He had a hickey on his neck and alcohol on his breath at that point in time, another situation that doesn’t make me feel very comfortable. This law will allow us, it’s not perfect, to get immediately permission from the sending state to take jurisdiction and to deal with that matter in a more expeditious and appropriate manner.
Chairman Anderson:
I believe that one of the groups I currently serve on is the Interstate Compact for the placement of these children; I believe there is an advisory group composed of people from the Legislature and Parole and Probation. I don’t remember or recall noting that this is one of the recommended pieces of legislation or even the request for legislation coming before it. Have you looked at or talked to the other folks, in your capacity, your Juvenile Services Program, have you talked to the people in Parole and Probation relative to the impact of this piece of legislation?
Leonard Pugh:
Are you referring to the Youth Parole Bureau? Actually, the state’s Youth Parole Bureau is the agency that administers the Interstate Compact on Juveniles. We worked with them initially on this issue. Linda Bummer, who was just recently appointed the manager of the Reno office, was involved in those discussions. She is the one who pointed out to us that we couldn’t change the language in the Interstate Compact on Juveniles agreement. That’s why we kicked it back to LCB to come up with a different approach. And she is in support of it [S.B. 286].
Chairman Anderson:
This does not endanger our Interstate Compact on Juveniles?
Leonard Pugh:
No, it doesn’t.
Chairman Anderson:
Questions from members of the Committee? Mr. Oceguera, do you have any recommendations that you want to make relative to any of these pieces of legislation?
Vice Chairman Oceguera:
The first two bills of the morning were fairly simple and straightforward. There weren’t too many questions and wasn’t any need for amendment, as I saw it. The bill numbers were S.B. 300 and S.B. 397.
Chairman Anderson:
Was there anyone else who wished to testify on S.B. 286? Chair will entertain a motion on S.B. 286.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO DO PASS S.B. 286.
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Horne was absent for the vote.)
Let me assign S.B. 286 to Assemblyman Brown.
Mr. Mortenson, you had a question about S.B. 300?
Assemblyman Mortenson:
If you were going to accept a motion on S.B. 300, I had some heartburn with Section 3. I don’t remember if you were in the room when I made my statement about the fact that I would be in jail on this one. I just think it is overly broad, Section 3. My discussion could be in a future work session, if you are not going to consider this one.
Chairman Anderson:
It is only 9:30 a.m.; I hesitate to get us out of here before 10 a.m. I wouldn’t want you to think that you hadn’t diligently used your time in the morning. What are your concerns in Section 3, the definition of material that is harmful to minors rather than the existing language of obscene material?
Assemblyman Mortenson:
No, in S.B. 300, Section 3, it says “a person shall not use a computer system or network to knowingly contact or communicate with or attempt to contact or communicate with a child who is less than 16 years of age and who is at least 5 years younger than the person…” and then it goes on to…
Chairman Anderson:
So, you are talking about the existing law?
Assemblyman Mortenson:
Yes, you are right, I am talking about the existing law. I was just saying that this would have branded me in my early years with the wife I am currently married to for 40 years. It would imply that this was an improper conduct even though it does go on to say, “who had the intent” of doing some bad things.
Chairman Anderson:
Let me raise your comfort level. This is not that old a piece of legislation. I serve on the committee that made the recommendations relative to cybercrime. In fact, this has become a very big issue with child pornographers; in particular, in terms of luring children into these kinds of relationships through the computer chat rooms. Therefore, that’s the reason why it reflects other existing parts of our legislation applicable to the computer.
Assemblyman Mortenson:
It’s the age notations that get to me a little bit.
Chairman Anderson:
I think it is the intent that is the question that has to be proven by the court that we have to deal with. While the age is a question that sets up the category, it’s the intent of the individual who is utilizing the system.
Assemblyman Mortenson:
OK, I understand, but there is an implication in there that this might be improper thing to do between these-aged people.
Chairman Anderson:
I am sure that the relationship between your wife and yourself, which has had a long and happy existence, at the time, may have been suspect by her father?
Assemblyman Mortenson:
Not at all.
Chairman Anderson:
Then you probably would never have been charged in the first place.
Assemblyman Mortenson:
I agree, I just dislike the way it implies that this is improper to communicate with a younger person. It is existing law.
Assemblywoman Buckley:
We have struggled with this issue in previous session; don’t feel like the Lone Ranger. We all know what we are trying to get at, but sometimes you have relationships between 15-year-olds and 18-year-olds. That’s been going on since the history of time and it will continue to go on. You don’t want to lump those same relationships with the sexual predators that we are all trying to get with the Internet crimes. That’s probably why, in the first place, it had 16 [years old] and 5 years. We have tried to make some sort of exceptions like in the sexual registry and sexual predator statutes to not get the statutory seduction where there is a 15- and 18-year-old in those similar issues. I think it is something valid that we continue to look at to make sure that we get at what we all want to get at.
Assemblyman Conklin:
I was going to hold my question. I am curious as to what “harmful to minors” [means]; I am looking it up, how broad that is. I like the bill, I understand where it is going, and I fully support it. I am concerned how broad that particular terminology is. I am going to do my research. Then I may have a question.
Chairman Anderson:
Under NRS 201.257, “Harmful to minors” defined, [it states]:
Quality of any description or representation, whether constituting all or a part of the material considered, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominantly appeals to the prurient, shameful or morbid interest of minors, is patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors, and is without serious literary, artistic, political or scientific value.
It is a much more specific definition than the broader, general term of obscenity; it’s narrowing the field rather than broadening the field. Of course, by all means, I note your reservation.
Chair will entertain a Do Pass motion on S.B. 300.
ASSEMBLYMAN OCEGUERA MOVED TO DO PASS S.B. 300.
ASSEMBLYMAN BROWN SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Horne was absent for the vote.)
I will ask Mr. Carpenter to present the bill on the Assembly Floor.
Let me hold S.B. 394; apparently we are waiting for some language there. Senate Bill 397, we have a couple of questions we need to have answered for members of the Committee. The Chair is not entirely comfortable with S.B. 397.
Anything else to come before the Committee today?
You will be happy to know that the Legislative Commission this morning agreed that we could be defended if we were to be sued, since the Chair, on behalf of the Committee, is to be cited once again for not doing something. Some guy in prison is upset because we were going to take a privilege away from him, and he has a right to be upset. But, we are OK.
We are adjourned [at 9:31 a.m.].
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: