Report: Sex offense 'loophole' exposed by Schneider case exists nationwide
As legislators work to address what many are calling a "loophole" in Alaska's sexual offense laws, a non-partisan report suggests there isn't an existing U.S. model for the type of change they're proposing — Alaska could be creating a prototype.
Following the initial report on Justin Schneider's now notorious no-jail plea deal, Gov. Bill Walker called for a change to Alaska law. Schneider strangled a woman unconscious and masturbated on her, but was never charged with sexual assault because Alaska law does not consider unwanted contact with semen a sexual offense.
Tuesday, Rep. Matt Claman, an Anchorage Democrat, announced plans to pre-file a bill that would add non-consensual contact with semen as a felony sex offense in Alaska.
"I think there's general recognition that there's a loophole, and I think there's general recognition that we need to close the loophole," he said.
Claman also released a public report by Legislative Research Services that details how the offense of unwanted contact with semen is addressed by state laws across the nation.
"We wanted to find out, is this just a problem in Alaska? Or is this something that if you went to any of the 50 states you'd discover the same concerns are there," Claman said.
The report reads:
"In our review of statues and case law in all 50 states, we could not identify any state where ejaculation onto another person—without any direct bodily contact with that person—is formally regarded as an offense of sexual assault against an adult, nor could we identify a case in which such an action—alone—was sufficient to constitute the formal offense of sexual assault against an adult at trial."
"I think I said to my staff, 'I bet if we get research, we're going to discover two or three or four states actually address this and the rest of the states have never looked at it.' I was really surprised to get the research that said all 50 states have the same loophole," Claman said.
There are outliers. The report found that in North Carolina ejaculating on someone is considered sexual battery, a misdemeanor crime. And in Oregon, the same act falls under a misdemeanor sexual abuse charge if done "for the purpose of arousing or gratifying the sexual desire." The report also notes that "the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed," is included in the state of New York's definition of sexual contact.
The statute closest to the one Claman is proposing is found in the laws of another country. According to the report, "Despite the lack of examples in the United States, at least one other country—Scotland—regards the offense of sexual assault as being committed by a person who 'intentionally or recklessly ejaculates' onto another person without consent or reasonable belief of consent."
The statute dealing with unwanted contact with semen in Alaska is harassment in the first degree. It's typically used for cases in which inmates throw fluids or human waste at corrections officers and encompasses offensive contact with: human or animal blood, mucus, saliva, semen, urine, vomit and feces.
Longtime Alaska defense attorney Rex Butler said making changes to that law could be more complicated than it seems.
"When you start looking at this exchange of fluids, it's just not cut and dry that it automatically should be a sex crime," he explained, "Because then the question becomes, if somebody pees on you, is that a sex crime?"
While there is much lawmakers have to consider, Claman says he's confident addressing the so-called loophole is an effort that will receive bipartisan support.
Sen.-elect Scott Kawasaki, D-Fairbanks, is also pre-filing legislation that would make unwanted contact with semen a sexual offense.
He released a working draft of the bill Tuesday.
While Republican Gov.-elect Mike Dunleavy's transition team spokesperson has said it's too early to say what specific fix he will support, she said addressing the loophole is one of his public safety priorities for the upcoming legislative session.
A grassroots movement formed almost immediately following news of Schneider's plea deal and successfully pushed to oust the judge who presided over the case. Now, the campaign is meeting with lawmakers and planning trips to Juneau to lobby for the change Claman and Kawasaki are proposing, in addition to other objectives.
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COMPREHENSIVE COVERAGE OF THE SCHNEIDER CASE: