STAND. COM. REP. NO. 1149-04

Honolulu, Hawaii

, 2004

RE: S.B. No. 2846

S.D. 1

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 2846, S.D. 1, entitled:

"A BILL FOR AN ACT PROPOSING AMENDMENTS TO ARTICLE I, SECTION 14, OF THE HAWAII CONSTITUTION,"

begs leave to report as follows:

The purpose of this bill is to propose a constitutional amendment to clarify that the Legislature may pass legislation providing that:

(1) The prior sexual history of an alleged sexual assault victim; and

(2) Privileged confidential communications between an alleged crime victim and the alleged victim's:

(a) Physician;

(b) Psychologist;

(c) Counselor; or

(d) Licensed mental health professional;

are inadmissible as evidence in court.

The Department of the Attorney General, Crime Victim Compensation Commission, Department of the Prosecuting Attorney for the City and County of Honolulu, Department of the Prosecuting Attorney for the County of Maui, Victim Witness Kokua Services Division of the Honolulu Prosecutor's Office, Honolulu Police Department, Hawaii County Police Department, Hawaii Psychological Association, Sex Abuse Treatment Center, Hawaii Coalition Against Sexual Assault, Hawaii State Coalition Against Domestic Violence, State of Hawaii Organization of Police Officers, and two concerned individuals testified in support of this bill. The National Association of Social Workers supported this measure and suggested that the language of this bill be amended to encompass social workers. The Office of the Public Defender and a concerned individual opposed this measure. The Judiciary suggested that the matter be referred to the Standing Committee on Rules of Evidence for evaluation. A concerned individual provided comments.

Your Committee finds that this bill seeks to enshrine in the State Constitution the rape shield law and the privileges afforded under the evidence code. However, the evidence code does not provide a privilege to licensed mental health professionals. Furthermore, the rape shield law and privileges, although important, cannot outweigh the accused's constitutionally protected rights.

Accordingly, Your Committee has amended this bill by:

(1) Clarifying that the provisions of this measure shall not infringe upon the accused's constitutional rights;

(2) Deleting reference to licensed mental health professionals; and

(3) Making technical, nonsubstantive amendments for clarity and style.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2846, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2846, S.D. 1, H.D. 1, and be placed on the calendar for Third Reading.

 

Respectfully submitted on behalf of the members of the Committee on Judiciary,

 

____________________________

ERIC G. HAMAKAWA, Chair