Legislature(2001 - 2002)
02/21/2002 01:52 PM House FIN
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* first hearing in first committee of referral
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= 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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