Legislature(2021 - 2022)GRUENBERG 120
04/27/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB163 | |
| HB102 | |
| HB157 | |
| HB118 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 163 | TELECONFERENCED | |
| += | HB 102 | TELECONFERENCED | |
| += | HB 157 | TELECONFERENCED | |
| += | HB 118 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
4:24:30 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act
relating to sexual abuse of a minor; relating to sexual assault;
relating to the code of military justice; relating to consent;
relating to the testing of sexual assault examination kits; and
providing for an effective date."
4:25:25 PM
REPRESENTATIVE Tarr, prime sponsor of HB 5, noted that
additional support documents had been distributed to the
committee [hard copy included in the committee packet]. The
material addressed the rape by fraud provisions and included the
2019 Felony Sex Offense Report. She concluded by quoting an
attorney who said, "Rape is like a murder where the victim
doesn't die." She believed that statement captured the severity
of the crimes being considered in this legislation.
4:26:59 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 1, labeled 32-
LS0065\G.1, Radford, 4/20/21, which read:
Page 3, following line 2:
Insert new bill sections to read:
"* Sec. 3. AS 11.41.432(b) is amended to read:
(b) Except as provided in (d) - (f) [(d) OR (e)]
of this section, in a prosecution under AS 11.41.410 -
11.41.427, it is not a defense that the victim was, at
the time of the alleged offense, the legal spouse of
the defendant.
* Sec. 4. AS 11.41.432 is amended by adding a new
subsection to read:
(f) It is a defense to a crime charged under
AS 11.41.410(a)(5) or 11.41.420(a)(5) that the
offender is married to the person and neither party
has filed with the court for separation, divorce, or
dissolution of the marriage."
Renumber the following bill sections accordingly.
Page 6, line 19:
Following "Act,":
Insert "AS 11.41.432(b), as amended by sec. 3 of
this Act, AS 11.41.432(f), enacted by sec. 4 of this
Act,"
Delete "sec. 3"
Insert "sec. 5"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 6"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 7"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 8"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 9"
Delete "sec. 8"
Insert "sec. 10"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 11"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 13"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 11 and 13"
Page 6, line 26:
Delete "Section 10"
Insert "Section 12"
REPRESENTATIVE CLAMAN objected.
REPRESENTATIVE EASTMAN, in explanation of Amendment 1, opined
that two individuals who were married and engaging in sexual
relations should not be prosecuted "under these kinds of
situations." He believed that spouses should be exempt from the
criminal sanctions [in the rape by fraud provisions].
REPRESENTATIVE TARR stated that she did not support Amendment 1
because it would be applied to the rape by fraud section. She
explained that the rape by fraud provisions were intended to
apply to a circumstance in which the offender misrepresented
his/her physical identity and recklessly disregarded that the
victim would not have consented to engaging in a sexual
relationship had the offender's real identity been known.
Moreover, she said she could not think of a circumstance in
which [rape by fraud] would apply to a married couple.
CHAIR KREISS-TOMKINS asked Representative Eastman to provide a
scenario that he was attempting to solve or prevent with the
proposed amendment.
REPRESENTATIVE EASTMAN remarked:
There have been situations where, you know, a spouse
is thinking that their partner is having an affair,
and as part of catching their partner in the act they
switch places and pretend to be the person that ...
they think their spouse is having an affair with.
REPRESENTATIVE EASTMAN claimed that these kinds of situations
had happened and would continue to happen. He continued by
recounting the story line from a Shakespeare play, titled "All's
Well That Ends Well." He believed it was not possible to
conceive of all the situations in which [the rape by fraud
provisions] could be used against an innocent spouse. Further,
he believed that charging a spouse with rape for having slept
with [his/her spouse] would be wrong.
CHAIR KREISS-TOMKINS asked Mr. Stinson whether he had
encountered a scenario that Amendment 1 would apply to during
his time in criminal law.
4:33:01 PM
JAMES STINSON, Director, Office of Public Advocacy, Department
of Administration, said he had not encountered that scenario.
He understood that the rape by fraud provisions were trying to
capture a person who had impersonated a different actual person
that was in a relationship with someone. Ultimately, he
believed that the proposed amendment would come down to a policy
call on whether it should be considered rape in the event of a
spousal relationship wherein one of the individuals thought that
he/she was having an affair with somebody but was actually
sleeping with his/her spouse.
4:34:49 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, said in his 22 years of experience
he had never encountered a case that was similar to what
Representative Eastman had laid out in his hypothetical. He
shared his understanding that Representative Eastman was
proposing that a person had engaged in sexual relations with
his/her spouse while believing that the spouse was a third
person; further, that person would not have actually consented
to having sex with the actual spouse. He said despite what
Shakespeare wrote, it did not seem like a realistic case that
would be referred for prosecution. Nonetheless, if
hypotheticals could be strained to the point that it would be
[referred to prosecution], he asked why the legislature would be
interested in passing a law that protected an individual who
could only have sexual relations with another person by
trickery. He said he was having difficulty understanding that
concept, and that it would be up to the committee to make the
policy call.
4:36:38 PM
REPRESENTATIVE CLAMAN echoed Mr. Skidmore's observations. He
said he was having a hard time conceiving the circumstance
described by Representative Eastman; further, he opined that the
application to marriage defense in that scenario was used
inappropriately. He explained that in the last few years, the
legislature had spent a lot of time looking in detail at AS
11.41.432(b), which was the provision relating to the marriage
defense, as well as other subsections on defenses in AS
11.41.432. He believed that Amendment 1 was proposed in
reference to a narrow and "somewhat bizarre" set of
circumstances that were hard to imagine. Further, he pointed
out that [the legislature] had worked hard to try to eliminate
the marriage defense except in limited circumstances, such as
the Alzheimer's scenario. He concluded by reiterating his
opposition to the proposed amendment.
4:38:08 PM
REPRESENTATIVE VANCE inquired about the flexibility in statute
when considering Alzheimer's cases pertaining to consent.
MR. SKIDMORE relayed that AS 11.41.432 described that "the
marriage defense is an affirmative defense when the offender was
married to the person, neither party is filed for divorce or
separation or dissolution. The the victim in that case is
capable of consenting and does, in fact, consent while capable
of understanding the nature of consequences." He recalled that
the concerns that had been raised during the legislative
testimony were related to the difficult situations in which a
person was capable of consenting on Monday but on Tuesday,
because of the nature of Alzheimer's disease, was not capable of
consenting. He opined that from that standpoint, there was an
affirmative defense; further, that prosecutors had discretion in
any case that was presented to them to determine whether it
appropriately met the elements and could be proven beyond a
reasonable doubt. He believed that the statute contained all
the necessary flexibility as written.
REPRESENTATIVE VANCE questioned how the proposed amendment would
affect that discretion in those types of scenarios.
MR. SKIDMORE clarified that Amendment 1 did not pertain to
Alzheimer's. Instead, he explained that the amendment was
trying to look at a scenario in which one spouse was trying to
commit a fraud on the other spouse by impersonating someone
else. He said he struggled with the concept that a spouse
wouldn't recognize his/her own spouse. He remarked:
But assuming for arguments sake that ... I can change
my appearance in some capacity that I can actually
fool the person with whom I have the most intimate
relationship on the planet with, my spouse - I can
fool that person into thinking that I'm another
person. In that scenario, this amendment would say
... the spouse that is the victim didn't want to
engage in a sexual act with their actual spouse but
was only willing to engage in that sexual act with a
third person outside of the marriage and in that
circumstance now, what this amendment would say is
'well, if you really have a relationship that's
dissolved that significantly and they are incapable of
recognizing who their own spouse is, and they engage
in a sexual act with them and they only did it because
of fraud, this amendment would now say that's going to
be protected.
MR. SKIDMORE concluded that the policy question for the
committee was whether to protect the conduct of the spouse that
committed that fraud.
4:43:35 PM
REPRESENTATIVE CLAMAN asked if Amendment 1 were to pass, what
the impact would be of making "this" a defense rather than an
affirmative defense.
MR. SKIDMORE believed that the difference was that an
affirmative defense required the defendant to put forth some
evidence that established that scenario; alternatively, a
defense didn't require the defendant to put forward anything
affirmatively but required the prosecution to disprove it.
4:45:03 PM
REPRESENTATIVE EASTMAN inquired about the statute of limitations
that would apply to the rape by fraud provisions should the bill
pass into law.
MR. SKIDMORE stated that sexual assault did not have a statute
of limitations.
REPRESENTATIVE EASTMAN pointed out that Mr. Skidmore had
mentioned that [the rape by fraud provisions] would only apply
when a spouse would not have consented to sexual relations [had
he/she known the true identity of the offender]; however, as he
understood it, that concept was not clearly stated in the bill.
Additionally, he recalled testimony from a previous hearing that
had indicated that a person's prior behavior did not equate to
consent. He asked for further clarification.
MR. SKIDMORE confirmed that previous conduct did not necessarily
equate to consent for a particular incident. Nonetheless, he
explained that as a prosecutor, his obligation would be to prove
that the victim did not consent. He anticipated that if
Amendment 1 were adopted, in any case in which he would try to
bring a charge under the [rape by fraud provision], the defense
attorney would argue "this was their spouse, you're telling me
they weren't considering [having] sex with their spouse?" He
believed that was the consent issue that the prosecution would
be faced with under this subsection. He continued to explain
that identity was the factor in question under this provision
and whether the victim truly did not perceive the actual
identity of the offender. He added that dressing up as someone
else would not be enough. He remarked:
I could try and make myself look like Brad Pitt ...
and so, if I attempted to do that, I don't think my
wife would ever be fooled into thinking that I was
Brad Pitt. And so, the question is if I was
pretending to be him, and I tried to engage in some
sort of sexual act with my wife ... did she consent to
that sex with me or was she truly fooled...
REPRESENTATIVE EASTMAN maintained his concern about
criminalizing conduct that was taking place within the
[confines] of marriage, which he believed shouldn't be criminal.
4:53:33 PM
REPRESENTATIVE CLAMAN maintained objection
4:54:01 PM
A roll call vote was taken. Representative Eastman voted in
favor of the adoption of Amendment 1. Representatives Tarr,
Story, Claman, Vance, Kaufman, and Kreiss-Tomkins voted against
it. Therefore, Amendment 1 failed by a vote of 1-6.
4:54:56 PM
REPRESENTATIVE VANCE moved to adopt Amendment 2, labeled 32-
LS0065\G.4, Radford, 4/26/21, which read:
Page 5, line 6:
Delete "person"
Insert "victim"
Delete "defendant"
Insert "offender"
Page 5, line 12:
Delete "defendant"
Insert "offender"
Page 5, line 14:
Delete "defendant's"
Insert "offender's"
Page 5, line 15:
Delete "defendant"
Insert "offender"
CHAIR KREISS-TOMKINS objected for the purpose of discussion.
4:55:00 PM
REPRESENTATIVE VANCE explained that Amendment 2 would provide
consistency in the bill language by replacing "person" with
"victim" and replacing "defendant" with "offender" on page 5.
CHAIR KREISS-TOMKINS questioned whether the inserted language
differed from other criminal law statutes. Additionally, he
asked why the bill was not originally drafted with the proposed
language in Amendment 2.
REPRESENTATIVE VANCE said she did not know the answer.
CHAIR KREISS-TOMKINS asked Mr. Stinson whether the language
proposed in Amendment 2 was consistent with other criminal law
statutes.
4:57:32 PM
MR. STINSON said he was unsure whether there would be a legal
significance. He explained that the person being charged was
designated as the "defendant" whereas the victim witness was
referred to as the "victim" or "alleged victim" during course of
the proceedings.
REPRESENTATIVE CLAMAN, after a quick perusal through AS
11.41.410, AS 11.41.420, and AS 11.41.425, noted that the
statutory language referred the "offender" rather than the
"defendant." Therefore, he believed that changing "defendant"
to "offender," as proposed in Amendment 2, would be more
consistent with the language in AS 11.41.410. However, he said
he was fairly certain that that the use of the word "victim" was
unusual because it would imply a conviction. He shared his
belief that deleting "person" and inserting "victim," as
proposed in Amendment 2, would draw the conclusion that a crime
had been committed.
REPRESENTATIVE EASTMAN pointed out that referring to a party as
a "petitioner" did not necessarily mean that their petition was
valid. Nonetheless, he agreed with Representative Claman that
to decide that a crime had been committed ahead of time would
prejudice the entire process.
5:01:27 PM
RENEE MCFARLAND, Deputy Public Defender, Alaska Public Defender
Agency, noted that sexual assault and sexual abuse of a minor
statutes used the word "offender" in reference to the defendant.
Further, sexual abuse of a minor statutes used the word "victim"
in provisions pertaining to individuals being charged with
conduct involving their children or people in positions of
authority. She also noted under AS 11.41.470, "victim" was
defined as "the person alleged to have been subjected to sexual
assault in any degree or sexual abuse of a minor in any degree."
Additionally, the current definition of "without consent" used
the word "defendant." Ultimately, she concluded that the
statutory language used "offender" in reference to the offense
at issue, "defendant" when addressing consent, and "victim" when
discussing certain aspects of sexual abuse of a minor.
5:03:00 PM
REPRESENTATIVE TARR pointed out that in "common language," there
was an ongoing effort to transition the verbiage from "victim"
to "survivor." She acknowledged that the effort was outside of
the law; nonetheless, it was part of the cultural change around
these issues. Regarding the use of "offender" instead of
"defendant," she said she was comfortable with the change if it
would maintain consistency.
CHAIR KREISS-TOMKINS asked Mr. Skidmore whether the Department
of Law (DOL) had a position on Amendment 2.
MR. SKIDMORE reported that the word "victim" was used in AS
11.41.410(a)(4)(B) and AS 11.41.420, as well as subsequently
defined in AS 11.41.470(7). He said DOL had no objections to
the use of the word "victim." He submitted that the statutes
were somewhat inconsistent in their use of "person" versus
"victim." He said he understood Amendment 2 to be an attempt at
clarifying the definition of consent in terms of who was being
discussed. He believed it would be a policy call for the
committee.
5:06:14 PM
REPRESENTATIVE KAUFMAN surmised that the ideal statutory
language would be the most neutral wording that correctly
identified the "players." He asked Mr. Skidmore whether there
was a benefit to using the terms "person" or "defendant," which
were more neutral, as opposed to "victim" and "offender."
MR. SKIDMORE agreed with the concept of using the most neutral
terms in statute in addition to providing clarity. He continued
to defer to the committee on whether Amendment 2 would provide
clarity.
CHAIR KREISS-TOMKINS maintained his objection. He said he was
in favor of using neutral legal language and that it was up to
the defense and the prosecution to make their case, as opposed
the statutory language. Further, he pointed out that there had
been no confusion around the existing language.
5:09:06 PM
REPRESENTATIVE VANCE stated that the purpose of Amendment 2 was
to clarify who was being described in the definition of consent.
She pointed out that the terms "victim" and "offender" were used
in Section 4 of SSHB 5; therefore, she believed the proposed
amendment would create consistency. Nonetheless, she deferred
to the will of the committee.
REPRESENTATIVE STORY inquired about the bill sponsor's position
on Amendment 2.
REPRESENTATIVE TARR said she was opposed at this time. She
expressed interest in continuing to work with Representative
Vance on the language as the bill moved forward.
5:11:09 PM
REPRESENTATIVE VANCE withdrew Amendment 2. She announced that
Amendment 3 would not be offered at this time.
5:12:37 PM
REPRESENTATIVE TARR moved to adopt Amendment 4, labeled 32-
LS0065\G.6 Radford, 4/26/21, which read:
Page 2, line 9:
Delete "who is"
Insert "whom the offender has"
Page 2, line 11, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual penetration if
the person knew the offender's real identity"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 11.41.410(b) is amended to read:
(b) Sexual assault in the first degree,
(1) under (a)(1) - (4) of this section, is
an unclassified felony and is punishable as provided
in AS 12.55;
(2) under (a)(5) of this section, is a
class A felony and is punishable as provided in AS
12.55."
Renumber the following bill sections accordingly.
Page 2, line 31:
Delete "who is"
Insert "whom the offender has"
Page 3, line 2, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual contact if the
person knew the offender's real identity"
Page 6, line 19, following "AS 11.41.420(a), ":
Insert "AS 11.41.420(b), as amended by sec. 2 of
this Act,"
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 5"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 6"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 8"
Delete "sec. 8"
Insert "sec. 9"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 10"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 12"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 10 and 12"
Page 6, line 26:
Delete "Section 10"
Insert "Section 11"
REPRESENTATIVE EASTMAN objected for the purpose of discussion.
5:12:44 PM
REPRESENTATIVE TARR stated that Amendment 4 was designed to
"tighten" up the language in the rape by fraud provisions.
Additionally, she said it would reclassify the crime. She
relayed that lines 5-9 of Amendment 4 were intended to clarify
that rape by fraud would apply to situations in which people
misrepresented their physical identity to gain consent for
sexual penetration or sexual contact, as opposed to
circumstances wherein someone was dishonest about his/her
education status or income, for example. She said the second
part of the amendment addressed the sentencing provisions. She
noted that sexual assault in the first degree was an
unclassified felony with a 15-20-year prison sentence for the
first offense. Amendment 4, she explained, would make rape by
fraud a class A felony, whereas sexual contact by fraud would be
a class B felony. She reasoned that the crime of rape by fraud
involved some premeditation, so situating it a class A felony
would differentiate it between sexual assault involving use of
force and other circumstances.
5:20:34 PM
REPRESENTATIVE EASTMAN asked, "should the ... meaning of the
amendment basically be 'with reckless disregard for the fact
that'?"
REPRESENTATIVE TARR stated that the offender would act with
reckless disregard that the person would not have consented had
the offender not concealed his/her physical identity.
REPRESENTATIVE EASTMAN questioned whether it was "reckless
disregard that it might be possible."
REPRESENTATIVE TARR believed that was correct.
REPRESENTATIVE EASTMAN asked whether "non-consent" would become
an element of the crime.
REPRESENTATIVE TARR understood that consent would be in question
in addition to whether the person acted with reckless disregard
to the sexual assault that took place.
REPRESENTATIVE EASTMAN asked, "to what extent does that the
person would not have consented does that need to be established
as part of the crime."
5:24:06 PM
MR. SKIDMORE said from DOL's perspective, the lack of consent
would absolutely be an element of the crime. He pointed out
that sexual conduct between two adults was not in and of itself
illegal - only the lack of consent made it illegal. He
explained that the lack of consent in this case was determined
by the fact that a fraud had occurred, and the fraud meant that
there wouldn't have been consent had the person known the other
individual's true identity.
REPRESENTATIVE EASTMAN expressed his confusion. He asked
whether rape by fraud was a situation in which the act of fraud
had deprived the victim of being able to consent or "if they had
wanted to consent if they knew the offender's real identity,
does that negate the crime?"
MR. SKIDMORE sought to verify that Representative Eastman was
asking whether it was a crime if [the victim] didn't consent
because of the fraud and would it not have been a crime if [the
victim] knew the person's real identity.
REPRESENTATIVE EASTMAN answered yes. He asked if the victim had
known the real identity and would have consented under those
circumstances, would the crime of rape by fraud have not
occurred.
MR. SKIDMORE remarked:
Yes, I think if they actually know the person's real
identity, or if they had known the person's real
identity and they would have consented had they known
the real person's identity, then I don't think you
have a crime of sexual assault because they were still
consenting to the sexual conduct. What the crime of
sexual assault under this particular subsection is
trying to get at is the circumstance in which a person
did not want to consent to that conduct with that
person, but if they were consenting under some other
circumstance, that's kind of what we talked about for
the earlier amendment. How in the world would that
ever get reported to law enforcement? If they're
consenting to it, then what is it that law
enforcement's investigating?
CHAIR KREISS-TOMKINS observed that there were "dimensions upon
dimensions" of hypotheticals with this particular section of
statute. For that reason, he said he found it discomforting in
terms of [the legislature's] ability to anticipate all scenarios
and consequences, intended or otherwise. Nonetheless, he said
he appreciated that Amendment 4 was trying to narrow and refine
[the language].
5:28:46 PM
REPRESENTATIVE KAUFMAN inquired about the term "physical
identity," as opposed to "identity." He questioned whether
"physical" was the appropriate wording.
REPRESENTATIVE TARR reported that she had discussed that wording
with Legislative Legal Services in an attempt to carefully
select the language. She explained that the drafter believed
that adding "physical" would help clarify the intent. She
addressed the built-in protections in the criminal justice
system, explaining that the police would have to investigate and
feel that they found sufficient evidence to prove beyond a
reasonable doubt that a crime had occurred; further, it would
have to get "screened in" by the prosecutors. Consequently, she
stated that many of the "what if" scenarios would never come to
fruition because of the built-in protections along the way.
REPRESENTATIVE KAUFMAN asked Mr. Skidmore to comment on the use
of "physical" versus "actual" or some other adjective.
MR. SKIDMORE acknowledged that in reading Amendment 4, he had
the same concern about how to differentiate "physical identity"
from "characteristics, traits, or accomplishments," as some of
those could be physical. He suggested that "actual" or "true"
could be an appropriate replacement and provide the type of
clarity that the committee was looking for.
5:34:09 PM
REPRESENTATIVE VANCE believed that the language in Amendment 4
was getting closer to capturing the intent. She asked for the
bill sponsor's perspective on replacing "physical" with
"actual." Additionally, she asked Mr. Skidmore whether "actual
identity" would provide more flexibility for the prosecution.
MR. SKIDMORE was unsure whether it would broaden opportunity.
He did, however, believe that it would provide clarity as to the
committee and the sponsor's intent.
CHAIR KREISS-TOMKINS asked for Mr. Stinson's perspective on the
relative merits of "actual" versus "physical" and the clarity
afforded by one versus the other.
MR. STINSON said he could understand the tension with either
word. He shared his understanding that the legislative intent
was to prevent a situation where a person was impersonating
someone's girlfriend, boyfriend, spouse, significant other, and
etcetera. He believed that Amendment 4 was closer to capturing
that intent; however, he pointed out that it could still allow
for a situation in which an individual impersonated a celebrity
to gain consent to engage in sexual relations with another
person. Nonetheless, he noted that there would still be obvious
protections built in to whether that would get reported,
charged, and so forth.
5:39:59 PM
REPRESENTATIVE CLAMAN suggested allowing more time for
Representative Vance and Representative Tarr to discuss and come
to an agreement on the issue before moving forward with the
amendment.
5:40:21 PM
CHAIR KREISS-TOMKINS announced that HB 5 was held over.