Legislature(2001 - 2002)

02/21/2002 01:52 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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).                                                                                 

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