The administration of Anchorage’s acting mayor is asking the Assembly to consider a handful of changes to the city’s criminal code, including sections of the code related to child abuse.
Part of the proposal would remove language in Anchorage’s Title 8, the municipal code outlining crimes the city can prosecute. The city prosecutes misdemeanors described under that code, according to city attorney Kate Vogel, but felonies are left to the state.
The city wants to take out a section of the code listing examples of “unreasonable” ways to discipline a child, such as inflicting injuries that need medical treatment, or shaking a child under age 5. It also wants to takes out a list of factors related to what counts as “reasonable parental discipline,” like the degree of pain and the child’s age.
At Tuesday night’s Assembly meeting, some people testified that they were concerned removing that language could make it easier for the city to prosecute parents for disciplining kids in reasonable ways.
Vogel, in an interview, said the list of examples of child abuse in city code wasn’t meant to be comprehensive, but it still ended up confusing juries. She said the examples made it so “if the particular egregious conduct wasn’t on the list, it was harder to prosecute.”
The city also says its criminal code on child abuse needs to be changed because a court said some of its language is faulty. That came out in a court ruling related to the 2011 conviction of Anchorage mother Jessica Beagley, who the municipality prosecuted after she sent video of her disciplining her child using hot sauce and a cold shower to the “Dr. Phil” show.
After looking at the Beagley case, a court of appeals said some of the code’s wording is “potentially problematic” — partially because it puts the burden on parents, not the municipality, to prove they were disciplining their child in a reasonable way, and also because it contains language that could signal that torture is allowed if it “was done to promote the child’s safety or the child’s ‘moral, social or cultural welfare.’ "
Vogel characterized the changes to Title 8 as small updates, arguing that in practice, they do not change what can and can’t be prosecuted as child abuse. Vogel said that state law provisions about what counts as “reasonable parental discipline” still applies in municipal cases.
The city is also proposing to change language that currently says it’s child abuse if a person “intentionally, knowingly, recklessly or negligently causes or permits a child or vulnerable adult to be tortured; cruelly confined; cruelly punished or physically injured.”
The city wants to remove the words “intentionally” and “knowingly” from that section.
At Tuesday night’s meeting, resident Louis Imbriani testified against the change, saying “the justification for it states that it’s to make it more clear, and I find that it makes it quite a bit more murky.”
In a memo explaining why they want the words removed, city attorneys say if a person does something that leads to a child getting injured, prosecutors only need to show the accused person acted “recklessly” to prove the person is guilty of child abuse. The other words are a distraction for juries, they argue.
“If a jury is focused on the fact that an act was not intentional, they are more likely to minimize the lower requisite level of intent of recklessness when determining guilt,” the memo says.
The memo adds, “it was previously a crime to negligently cause or permit a child to be physically injured,” and the proposed change raises the legal bar — under the change, the city would have to show to a person “recklessly” caused or let a child be injured, rather than just “negligently.”
The memo says in practice, the city prosecutor’s office is already not likely to charge a parent if their child hurts themselves while playing unsupervised, for example.
“It should be noted that it remains a crime to negligently allow torture, cruel confinement, or cruel punishment,” the memo says.
The Assembly at its Tuesday meeting postponed action on the ordinance and will take it up during its June 22 meeting.