"An Act relating to the crimes of assault and custodial interference; and providing for an effective date. "
"SB 135 proposes to recognize a limited "necessity" defense for parental kidnapping, but only if the parent holds the child for no longer than 24 hours, or the time necessary to contact authorities, whichever is shorter."
- Sen. Dyson
SB 135 is aimed to provide additional protection to Alaska's children, and was drafted by the Criminal Division of the Department of Law. The bill focuses on two crimes: assault and custodial interference.
Assault. Assault in the third degree concerns the reckless injury (of a young) child that reasonably requires medical treatment. The abuse that vulnerable infants and small children experience, however, is often difficult to accurately diagnose without extensive medical testing. In Wells v. State, 102 P.3d 972 (Alaska App. 2004), the Alaska court of appeals held that this diagnostic testing does not constitute "treatment." In that particular case, the emergency room doctor found "numerous bruises" on the head of a 9-month old infant, so they order a CT scan and blood tests. Two doctors testified that the bruises could not have been caused by the infant banging his own head on the crib because he could not have generated enough force. The defendant was convicted by a jury, and the court of appeals reversed.
SB 135 proposes to change "reasonably requires medical treatment" to "would cause a reasonable caregiver to seek medical attention from a health care professional in the form of diagnosis, treatment, or care." This change is consistent with other statutes, such as criminal nonsupport-a misdemeanor for failure to provide a child with necessary "medical attention" This phrase has been interpreted by Alaska courts as broader than mere "treatment," because "children may suffer injuries sufficiently threatening to require a medical examination, even if that examination ultimately discloses no need for treatment." S.R.D. v. State, 820 P.2d 1088, 1090-91 (Alaska App. 1991).
Custodial Interference. Parents who kidnap their children take them for long periods, and it is usually months before the children can be accounted for and the parents brought to justice. Often, the children are moved from place to place, kept out of public school, or had their legal names changed-to avoid being found. The kidnapper often defends his/her conduct by claiming that the child was not being cared for by the custodial parent, or was being abused, and therefore it was necessary to take the child. A "necessity" defense is allowed for many crimes (AS 11.81.320), but was not believed to be allowed in parental kidnapping cases until Perrin v. State, 66 P.3d 21 (Alaska App. 2003). Some boundaries to this defense are appropriate.
SB 135 proposes to recognize a limited "necessity" defense for parental kidnapping, but only if the parent holds the child for no longer than 24 hours, or the time necessary to contact authorities, whichever is shorter.