REPORT TITLE:
Sexual Assault; Sentencing


DESCRIPTION:
Imposes mandatory sentence of castration by surgery or chemical
injection for a conviction of sexual assault in the first degree
accomplished by the deliberate use of force and by the deliberate
use or threat of violence. Makes conforming amendments.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           1228
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT
RELATING TO SEXUAL ASSAULT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature recognizes the serious and
 
 2 violent nature of the crime of sexual assault, which inflicts
 
 3 serious and often permanent physical and emotional injury upon
 
 4 its victims.  Rehabilitation of convicted rapists is a failure,
 
 5 and there is little deterrence under present sentencing laws.
 
 6      The purpose of this Act is to ensure sufficient deterrence
 
 7 to rape by providing that persons who are convicted of either
 
 8 sexual assault in the first degree or sexual assault in any
 
 9 degree as a repeat offender are made physically incapable of
 
10 repeating the crime.
 
11      SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended
 
12 by adding a new section to be appropriately designated and to
 
13 read as follows:
 
14      "706-     Penalties for sexual assault.  (a)  Any other law
 
15 to the contrary notwithstanding, any person convicted of sexual
 
16 assault in the first degree, pursuant to section 707-730, that is
 
17 accomplished by the deliberate use of force and by the use, or
 
18 threat, of violence shall be sentenced to castration by an
 
19 operation performed, or chemical injection administered, by a
 
20 physician or surgeon licensed to practice in this State under
 

 
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 1 chapter 453 or 460.
 
 2      (b)  The sentence imposed under subsection (a) shall be
 
 3 mandatory and shall be imposed in addition to any other sentence
 
 4 allowable for conditions of first degree rape."
 
 5      SECTION 3.  Section 706-659, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "706-659  Sentence of imprisonment for class A felony.
 
 8 Notwithstanding part II; sections 706-605, 706-606, 706-606.5,
 
 9 706-660.1, 706-661, and 706-662; and any other law to the
 
10 contrary, a person who has been convicted of a class A felony,
 
11 except class A felonies defined in chapter 712, part IV, shall be
 
12 sentenced to an indeterminate term of imprisonment of twenty
 
13 years without the possibility of suspension of sentence or
 
14 probation.  The minimum length of imprisonment shall be
 
15 determined by the Hawaii paroling authority in accordance with
 
16 section 706-669.  A person who has been convicted of a class A
 
17 felony defined in chapter 712, part IV, may be sentenced to an
 
18 indeterminate term of imprisonment, except as provided for in
 
19 section 706-    relating to penalties for sexual assault, section
 
20 706-660.1 relating to the use of firearms in certain felony
 
21 offenses, and section 706-606.5 relating to repeat offenders.
 

 
 
 
 
 
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 1 When ordering such a sentence, the court shall impose the maximum
 
 2 length of imprisonment which shall be twenty years.  The minimum
 
 3 length of imprisonment shall be determined by the Hawaii paroling
 
 4 authority in accordance with section 706-669."
 
 5      SECTION 4.  Section 706-660.1, Hawaii Revised Statutes, is
 
 6 amended by amending subsections (1), (2), and (3) to read as
 
 7 follows:
 
 8      "(1)  [A] Except as provided in section 706-   , a person
 
 9 convicted of a felony, where the person had a firearm in the
 
10 person's possession or threatened its use or used the firearm
 
11 while engaged in the commission of the felony, whether the
 
12 firearm was loaded or not, and whether operable or not, may in
 
13 addition to the indeterminate term of imprisonment provided for
 
14 the grade of offense, be sentenced to a mandatory minimum term of
 
15 imprisonment without possibility of parole or probation the
 
16 length of which shall be as follows:
 
17      (a)  For murder in the second degree and attempted murder in
 
18           the second degree--up to fifteen years;
 
19      (b)  For a class A felony--up to ten years;
 
20      (c)  For a class B felony--up to five years; and
 
21      (d)  For a class C felony--up to three years.
 
22 The sentence of imprisonment for a felony involving the use of a
 
23 firearm as provided in this subsection shall not be subject to
 

 
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 1 the procedure for determining minimum term of imprisonment
 
 2 prescribed under section 706-669; provided further that a person
 
 3 who is imprisoned in a correctional institution as provided in
 
 4 this subsection shall become subject to the parole procedure as
 
 5 prescribed in section 706-670 only upon the expiration of the
 
 6 term of mandatory imprisonment fixed under paragraph (a), (b),
 
 7 (c), or (d).
 
 8      (2)  [A] Except as provided in section 706-   , a person
 
 9 convicted of a second firearm felony offense as provided in
 
10 subsection (1) where the person had a firearm in the person's
 
11 possession or threatened its use or used the firearm while
 
12 engaged in the commission of the felony, whether the firearm was
 
13 loaded or not, and whether operable or not, shall in addition to
 
14 the indeterminate term of imprisonment provided for the grade of
 
15 offense, be sentenced to a mandatory minimum term of imprisonment
 
16 without possibility of parole or probation the length of which
 
17 shall be as follows:
 
18      (a)  For murder in the second degree and attempted murder in
 
19           the second degree--twenty years;
 
20      (b)  For a class A felony--thirteen years, four months;
 
21      (c)  For a class B felony--six years, eight months; and
 
22      (d)  For a class C felony--three years, four months.
 
23 The sentence of imprisonment for a second felony offense
 

 
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                                     S.B. NO.           1228
                                                        
                                                        

 
 1 involving the use of a firearm as provided in this subsection
 
 2 shall not be subject to the procedure for determining a minimum
 
 3 term of imprisonment prescribed under section 706-669; provided
 
 4 further that a person who is imprisoned in a correctional
 
 5 institution as provided in this subsection shall become subject
 
 6 to the parole procedure as prescribed in section 706-670 only
 
 7 upon expiration of the term of mandatory imprisonment fixed under
 
 8 paragraph (a), (b), (c), or (d).
 
 9      (3)  [A] Except as provided in section 706-   , a person
 
10 convicted of a felony, where the person had a semiautomatic
 
11 firearm or automatic firearm in the person's possession or used
 
12 or threatened its use while engaged in the commission of the
 
13 felony, whether the semiautomatic firearm or automatic firearm
 
14 was loaded or not, and whether operable or not, shall in addition
 
15 to the indeterminate term of imprisonment provided for the grade
 
16 of offense, be sentenced to a mandatory minimum term of
 
17 imprisonment without possibility of parole or probation the
 
18 length of which shall be as follows:
 
19      (a)  For murder in the second degree and attempted murder in
 
20           the second degree--twenty years;
 
21      (b)  For a class A felony--fifteen years;
 
22      (c)  For a class B felony--ten years; and
 
23      (d)  For a class C felony--five years.
 

 
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 1 The sentence of imprisonment for a felony involving the use of a
 
 2 semiautomatic firearm or automatic firearm as provided in this
 
 3 subsection shall not be subject to the procedure for determining
 
 4 a minimum term of imprisonment prescribed under section 706-669;
 
 5 provided further that a person who is imprisoned in a
 
 6 correctional institution as provided in this subsection shall
 
 7 become subject to the parole procedure as prescribed in section
 
 8 706-670 only upon expiration of the term of mandatory
 
 9 imprisonment fixed under paragraph (a), (b), (c), or (d)."
 
10      SECTION 5.  Section 706-660.2, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "706-660.2  Sentence of imprisonment for offenses against
 
13 children, elder persons, or handicapped persons.
 
14 [Notwithstanding] Except as provided in section 706-   , and
 
15 notwithstanding section 706-669, a person who, in the course of
 
16 committing or attempting to commit a felony, causes the death or
 
17 inflicts serious or substantial bodily injury upon a person who
 
18 is:
 
19      (1)  Sixty years of age or older;
 
20      (2)  Blind, a paraplegic, or a quadriplegic; or
 
21      (3)  Eight years of age or younger;
 
22 and [such] the disability is known or reasonably should be known
 
23 to the defendant, shall, if not subjected to an extended term of
 

 
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                                     S.B. NO.           1228
                                                        
                                                        

 
 1 imprisonment pursuant to section 706-662, be sentenced to a
 
 2 mandatory minimum term of imprisonment without possibility of
 
 3 parole as follows:
 
 4      (1)  For murder in the second degree--fifteen years;
 
 5      (2)  For a class A felony--six years, eight months;
 
 6      (3)  For a class B felony--three years, four months;
 
 7      (4)  For a class C felony--one year, eight months."
 
 8      SECTION 6.  Section 706-662, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "706-662  Criteria for extended terms of imprisonment.  A
 
11 convicted defendant may be subject to an extended term of
 
12 imprisonment under section 706-661, if the convicted defendant
 
13 satisfies one or more of the following criteria:
 
14      (1)  The defendant is a persistent offender whose
 
15           imprisonment for an extended term is necessary for
 
16           protection of the public.  The court shall not make
 
17           this finding unless the defendant has previously been
 
18           convicted of two felonies committed at different times
 
19           when the defendant was eighteen years of age or older.
 
20      (2)  The defendant is a professional criminal whose
 
21           imprisonment for an extended term is necessary for
 
22           protection of the public.  The court shall not make
 
23           this finding unless:
 

 
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 1           (a)  The circumstances of the crime show that the
 
 2                defendant has knowingly engaged in criminal
 
 3                activity as a major source of livelihood; or
 
 4           (b)  The defendant has substantial income or resources
 
 5                not explained to be derived from a source other
 
 6                than criminal activity.
 
 7      (3)  The defendant is a dangerous person whose imprisonment
 
 8           for an extended term is necessary for protection of the
 
 9           public.  The court shall not make this finding unless
 
10           the defendant has been subjected to a psychiatric or
 
11           psychological evaluation that documents a significant
 
12           history of dangerousness to others resulting in
 
13           criminally violent conduct, and this history makes the
 
14           defendant a serious danger to others.  Nothing in this
 
15           section precludes the introduction of victim-related
 
16           data in order to establish dangerousness in accord with
 
17           the Hawaii rules of evidence.
 
18      (4)  The defendant is a multiple offender whose criminal
 
19           actions were so extensive that a sentence of
 
20           imprisonment for an extended term is necessary for
 
21           protection of the public.  The court shall not make
 
22           this finding unless:
 
23           (a)  The defendant is being sentenced for two or more
 

 
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                                     S.B. NO.           1228
                                                        
                                                        

 
 1                felonies or is already under sentence of
 
 2                imprisonment for felony; or
 
 3           (b)  The maximum terms of imprisonment authorized for
 
 4                each of the defendant's crimes, if made to run
 
 5                consecutively would equal or exceed in length the
 
 6                maximum of the extended term imposed, or would
 
 7                equal or exceed forty years if the extended term
 
 8                imposed is for a class A felony.
 
 9      (5)  The defendant is an offender against the elder,
 
10           handicapped, or minor under the age of eight whose
 
11           imprisonment for an extended term is necessary for the
 
12           protection of the public.  The court shall not make
 
13           this finding unless:
 
14           (a)  The defendant attempts or commits any of the
 
15                following crimes:  murder, manslaughter, a sexual
 
16                offense that constitutes a felony under chapter
 
17                707[,] except as provided in section 706-  ,
 
18                robbery, felonious assault, burglary, or
 
19                kidnapping; and
 
20           (b)  The defendant, in the course of committing or
 
21                attempting to commit the crime, inflicts serious
 
22                or substantial bodily injury upon a person who is:
 
23                (i)  Sixty years of age or older;
 

 
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 1               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
 2              (iii)  Eight years of age or younger; and
 
 3           (c)  [Such] The disability is known or reasonably
 
 4                should be known to the defendant."
 
 5      SECTION 7.  This Act does not affect rights and duties that
 
 6 matured, penalties that were incurred, and proceedings that were
 
 7 begun, before its effective date.
 
 8      SECTION 8.  Statutory material to be repealed is bracketed.
 
 9 New statutory material is underscored.
 
10      SECTION 9.  This Act shall take effect upon its approval.
 
11 
 
12                              INTRODUCED BY:______________________