Legislature(2001 - 2002)
02/21/2002 01:52 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE BILL NO. 297 "An Act related to aggravating factors at sentencing." REPRESENTATIVE KEVIN MYERS, SPONSOR, spoke in support of the legislation. He noted that HB 297 adds an aggravating factor that says when drugs or alcohol are used to lower the inhibitions of a person to a point where they become the victim of a sexual assault; the seriousness of the crime should and could be elevated in the eye of the court. By adding this to the list of aggravating factors (there are already 28 or 29) defendants in felony sexual assault crimes may be held to a higher degree of punishment. HB 297 will allow a judge to increase a presumptive sentence up to the maximum term of imprisonment for that offense. Sexual assault continues to be a crime that devastates our communities: both urban and rural. Representative Myer noted that he is on the Board of Directors of STAR (Stand Together Against Rape). He explained that there are new drugs, Rohypnol and GHB, which are commonly known as "date rape" drugs. Sex offenders use these drugs to prevent victims from being able to resist, and defend themselves. He noted that he has two daughters and expressed his concern, as a father, that they could experience such drugs. He maintained that society wants sex offenders who use these drugs to receive stiffer penalties. The bill does not require the Court to impose stricter penalties in sexual assault cases [involving drugs or alcohol]; it simply provides the court with the ability to do so. Representative Myer observed that there are two indeterminate fiscal notes and one zero fiscal note and acknowledged that there could be additional fiscal costs if a judge used the aggravator to increase sentencing, but felt that the impact would be relatively small. Representative Foster observed that a first time offender could receive from 8 to 30 years. He questioned why the fiscal note is zero. Representative Myer explained that the maximum that could be given is 30 years. Eight years is the presumptive sentence for sexual assault. He acknowledged that a judge could go up to 30 years, but he felt it would be unlikely. Vice-Chair Bunde pointed out that males are not the only ones responsible for sexual assault. He recalled that legislation was previously passed regarding the use of "date rape" drugs and questioned how HB 297 would fit. He noted that it was already illegal to use a date rape drug. Representative Croft explained that the previous legislation criminalized possession and distribution of "date rape" drugs. The current legislation would address the use of date rape drugs or anything that would incapacitate someone in an attempt to further the crime of rape. Representative Whitaker expressed concern that the provisions of the legislation could be abused. He questioned if there were discussions in previous committees regarding possible abuse of the provision. He gave the example of two persons, sharing a bottle of wine, where one decides afterwards that there was a circumstance that occurred that would not have occurred without the bottle of wine. Representative Myer recalled discussions, which occurred in the House Judiciary Committee regarding the scenario, put forth by Representative Whitaker. He noted that the key word is "incapacitated." He observed that "incapacitated" means: "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act." He pointed out that sexual assault is difficult to prove. He concluded that a couple sharing a bottle of wine would not be a factor. Representative Myer recalled that Representative Berkowitz argued that the aggravator was unneeded since an aggravator exists under AS 12.55.155(c)(5) that: the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance. However, the director of STAR provided examples of related cases in which the court didn't use AS 12.55.155(c)(5) in sentencing. Representative Meyer stressed the need to clarify that [date rape] drugs and excessive alcohol would not be tolerated in cases of sexual assault. Representative John Davies pointed out that they would have to demonstrate that the wine was shared with the intent of incapacitating the victim for the purpose of sexual assault. Representative Hudson questioned if the legislation was on behalf of the judicial system. Representative Myer clarified that the Board of Directors for STAR discussed the need for the legislation. Representative Hudson observed that the legislation is permissive. LAURA HUGONIN, EXECUTIVE DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of the legislation. She explained that Rohypnol and GHB were added to the felony drug list in 1997. There has been more use of GHB in connection with sexual assault in Alaska, especially in the Kenai among younger offenders. She stressed the need for a strong message. She acknowledged the extension of jail time but emphasized that concurrent sentences, probation and other factors mitigate jail time. In response to a question by Representative John Davies, Ms. Hugonin recalled that some cases were brought forward in Anchorage. Representative John Davies thought that the presumptive range was currently 8 to 25 years. The legislation would only extend the maximum range by 5 years. Vice-Chair Bunde noted that some drugs are illegal to possess but not illegal to use. He questioned if that were the case with Rohypnol and GHB. Ms. Hugonin pointed out that the in situations were there is sexual assault the drugs are surreptitiously given to the victim. The drug can take away the victim's ability to move. Representative Hudson questioned if the value is in the form of prevention. Ms. Hugonin observed that media campaigns would educate persons regarding the penalty, but that there would be additional value in the prevention of additional assaults during their time of incarceration. She observed that sexual offenders generally commit multiple offenses. Representative Foster MOVED to report HB 297 (JUD) out of Committee with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CSHB 297 (JUD) was REPORTED out of Committee with a "do pass" recommendation and with three previously published fiscal notes: #1 (LAW), #2 (ADM), and #3 (COR).