Legislature(1993 - 1994)
05/03/1993 02:50 PM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
CS FOR HOUSE BILL NO. 109(JUD)
An Act relating to blood tests for persons charged with
sex offenses; and providing for an effective date.
Co-chair Pearce directed that CSHB 109 (Jud) be brought on
for discussion. JACK PHELPS, aide to Representative Kott,
came before committee. He termed the proposed legislation a
"victim's right bill" and expressed his belief that victims
of sexual assault should have the right to seek some measure
of relief through determination of whether or not the
attacker is infected with sexually transmitted diseases.
Through petition by the victim, courts may order that the
attacker provide blood samples for testing.
Mr. Phelps noted a connection between the proposed bill and
federal moneys provided through the federal Crime Control
Act of 1990. The Dept. of Public Safety could lose 10%--
$187.0 of its crime control grant moneys if the legislation
is not passed by October of 1993. Funding from states that
do not comply will be redistributed to those that do.
Co-chair Pearce voiced her understanding that the attacker
has to be changed with the assault before the proposed bill
would come into play. Mr Phelps concurred. He explained
that the petition initiated by the victim would be a
separate court action. The court would have to make a
finding that the alleged perpetrator committed a crime and
that the crime included sexual penetration. Based on a
finding of probable cause, the court would then order the
blood test.
In response to an additional question from Senator Rieger,
Mr. Phelps explained that a "charge" against an individual
results from presentment or indictment by a grand jury or by
sworn statement by an officer of the law. Most of the
crimes covered by the bill are felony charges which are
generally brought by indictment.
Senator Rieger next inquired concerning the reason for the
seven-day waiting period, after arrest, during which the
court may not order a test. Mr. Phelps explained that the
intention of the waiting period is to ensure that charges
have actually been filed, the defendant has obtained
counsel, and it appears unlikely the charges will be
dropped.
Senator Rieger directed attention to page 3, lines 2 and 3,
and inquired concerning "adjudication by the court other
than a conviction" and asked if plea bargains would be
covered by the bill.
End, SFC-93, #71, Side 2
Begin, SFC-93, #73, Side 1
Mr. Phelps responded that adjudication other than conviction
generally means that the individual has been acquitted. A
plea bargain would involve some form of guilty plea and
would not remove the defendant from coverage by the proposed
bill.
Senator Rieger directed attention to page 4, lines 4 and 5,
and asked why results of the test would not be admissible
evidence in the criminal proceeding. Mr. Phelps responded
that the purpose of the test is to provide information to
victims. It is not intended to be used as evidence against
an individual. The proposed bill would not preclude a
prosecutor from requesting a test for evidentiary purposes.
In response to a further inquiry from Senator Rieger
regarding language at page 4, line 3, Mr. Phelps explained
that with court allowance, the victim could disclose test
information to the victim's spouse, immediate family,
persons occupying the same household as the victim, or a
person in a dating, courtship, or engagement relationship
with the victim. That language was added to the bill at the
request of the Council on Domestic Violence and Sexual
Assault. Senator Rieger questioned whether the language was
properly worded and suggested that Representative Kott and
his staff further review the provision.
Senator Jacko asked if the court is required to hold a
hearing if the defendant objects to the testing. Mr. Phelps
responded negatively. He explained that the bill allows the
court to rely upon evidence gathered by the grand jury or at
preliminary hearing if that evidence is sufficient to
convince the court that the defendant was the perpetrator.
In the absence of that evidence, the court could hold an
additional hearing, based on petition from the victim, and
take testimony to make a probable cause determination.
Senator Jacko asked if the defendant would be required to be
present or represented at the hearing. Mr. Phelps responded
negatively, indicating that indictments are often ex parte.
Co-chair Pearce called for additional testimony on the bill.
None was forthcoming. She then queried members on
disposition. Senator Rieger MOVED that CSHB 109 (Jud) pass
from committee with individual recommendations and the
accompanying fiscal notes. No objection having been raised,
CSHB 109 (Jud) was REPORTED OUT of committee with zero
fiscal notes from the Dept. of Law and Dept. of Corrections,
a $45.5 note from the Dept. of Health and Social Services
(Nursing), and a $27.9 note from the Dept. of Health and
Social Services (Laboratories). Co-chairs Pearce and Frank
and Senators Rieger and Sharp signed the committee report
with a "do pass" recommendation. Senators Jacko and
Kerttula signed "no rec." Senator Kelly was temporarily
absent from the meeting and did not sign.
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