against less helpless individuals. It would appear that the more reasonable policy would be the reverse; certainly the concept that "what one does not know won't hurt them" would not be applicable in this sort of situation. (2) We also believe that sufficient consideration has not been given to whether there is injury to the victim, or whether there were aggravating circumstances (i.e. use of a weapon). Although the LRC has implied in its discussion that this was taken into consideration, we do not find it reflected in the actual statutory suggestions. (3) While we understand the concern by some individuals for what has been described as the peculiar "paranoia" of some potential victims, we are concerned with use of the criterion of "reasonable fear". It should be sufficient that the victim was in fact afraid, and that the actor took advantage of that fear, both of which are legitimate questions for the jury. Otherwise, we believe that the "reasonable fear" concept is unfair to the victim and will not serve well in the equitable prosecution of cases. (4) The use of the requirement of "imminent harm" does not take into suitable account the many times more realistic and foreboding prospect of more serious future harm when the latter is both achievable and realistic (i.e. will harm your child when gets out of school). (5) We feel that it is very important in the economic setting of this city and times that there must be criminal sanction against compulsion by threat to employment, property or reputation. Contrary to some comments of record, there has been recognition of the imperative nature of such threats in other areas of criminal responsibility (i.e. extortion, blackmail) and there should be no less recognition in the area of sexual coercion. For acceptable inclusion of such economic threats, we refer you to the DC/CSW draft of sexual assault statute revision. (6) We strongly object to the affirmative defense as to the "belief" of the actor that the victim would have consented if he or she had been able to do so. That concept does not take into adequate account the operative fact: namely that the victim did not consent. We would concur with those who have felt that this would be an open invitation to every accused, and find no merit to the opinion that exclusion of such a provision would encourage bad faith accusations. There appear to be sufficient safeguards in other provisions to prevent such. (7) We find what we consider to be major flaws in the evidenciary provisions of the proposals. We are seriously concerned as to the protection of the victim at trial, i.e. concerning reasonable belief as to the age of the victim, past sexual history and similar areas. While we concur that there should be the opportunity for the actor to defend himself or herself if in fact they have been "duped" or misled, it must be kept in mind that the act has been committed against the victim, and that the victim must be protected. We are not satisfied with the suggested use of judges' chambers for determination of specific limited areas of admissibility in all areas. The suggested provision is too vague for a criminal statute; it does not take into consideration the complex problem at present of special corroboration requirements. and we do not believe that recent court decisions are sufficient upon which to rest such an important area. Specifically, concerning the question of admissibility of evidence concerning past sexual history, we would suggest that this would be proper (a) only concerning such history with the defendant on the issue of consent, and (b) with people other than the defendant when probative of another possible source or disease, pregnancy, semen or injury. Evidence otherwise of sexual reputation should be inadmissible. (8) We have conscientiously endeavored to investigate and prepare appropriate definitions and provisions relating to the use of the actor's authority over the victim to insure cooperation in the violative sexual activity. The many significant circumstances which have been eliminated from the LRC's proposals have been inIcluded in what we consider to be execellent form in the draft prepared by the Commission on the Status of Women. We would recommend that the following from the DC/CSW draft be incorporated in lieu of that contained within the LRC draft: "Position of Authority" is any relationship that is one of superior statute to the victim. Such a position implies the right of the actor to expect or demand obedience, acquiescence or submission. Authority or the appearance of authority may be established by but is not liimted to evidence of the actor's age, maturity, blood or household relationship to the victim, status, occupation or position of trust involving the support, care, discipline, custody, education or counseling of the victim." The concept of use of force or other means to obtain consent (thus negating the consent) should include the above cited "position of authority" definition; there are two elements involved: (a) that the actor had a position of authority over the victim, and (b) that the actor used this authority to coerce the victim to submit. In this same general area, we are at a total loss to understand why the element of "recklessness" is at all involved. If the operative concept is the use of authority to obtain consent, the lack of due regard for the consequences, if we use the LRC's definitions, is just not relevant. Moreover, we cannot accept the proposition that not to include such a provision would preclude all those are incapable of consenting from having any sort of sexual relationship. In such circumstances, it is merely necessary to prove that the actor used the position of authority to force submission. We are herein concerned only with the "victimizing" by one individual of another. It would appear that this presentation, eliminating the "recklessness" aspects would properly insure that justice was preserved. (9) We would also encourage the inclusion of one area of activity which appears to have been not included within LRC proposals, namely that of the actor forcing the victim to touch the actor's intimate parts. We feel that this is a very prevalent area of conduct and should be prohibited specifically within the statute. (10) We have indicated our approval of the LRC position on elimination of "spousal exclusion" in sexual assault and contact in the first degree and when there has been legal separation. Thus, we find particularly puzzling that in other areas, the LRC position appears to countermand the definite trend in this coun try to consider diminishing or eliminating such exclusion. Traditionally, the law has prohibited spouses from charging each other with sexual assault. It appears that the LRC has expanded rather than diminished the exclusion, and that their proposal includes prohibition against charging not only a spouse with the crime, but also someone with whom one has been living (presumably without matrimony). We cannot understand the rationale which would eliminate the spousal exclusion on one hand, and extend it on the other. If the LRC and Congress feels it it necessary to continue to have a "spousal exclusion", we would encourage consideration of limiting it to only those actually married to each other, not separated, and not to include sexual assault and/or contact in the first degree (as has been suggested by the LRC). Concerning the sentencing provisions proposed, in general we will limit our comments to those provisions relating to sexual assault. However, we would note that our platform also includes the "promotion of effective crime control in the District of Columbia", and for this reason we feel that it is incumbent upon us to make some cursory comments on general provisions relating to effective deterrence and other related matters. Now that we have had the opportunity to carefully review the sentencing proposals, we find many questions and ambiguities. In some areas we believe that the LRC had an intent without actually spelling it out in language which sc describes that intent; we would encourage the spelling out of each area. For instance, does a judge have the right to actually sentence a criminal to the maximum penalty under the law (i.e. Class A felony, 20 years), or only 2% of that time, with the rest in some other category including supervision? If the maximum was allowed in prison, most of the terms assigned would probably be acceptable, in all categories or classes. In other areas, if consent is coerced through force or use of authority, it is possible that 3 years would be too minimal a sentence. We would strongly suggest that the area of criminal sexual assault is not something which lends itself to rigid sentencing; for this reason, we believe that minimum and maximums should be available. As stated at present, some penalties are so low as to effectively preclude prosecution. We are concerned as to the severe gradation between first and second degree assaultive sentencing: the distinctions between the crimes are not so significant as to warrant the significant disparity of 15 to 10 years, respectively. We would reiterate it seems very difficult to understand why a criminal offense against someone who is helpless or unaware should bring a much lesser penalty than against one who is not so helpless. We would cite as an example: at present, "statutory rape" is sentenced at 20 to any term of years up to life. Under the proposed revision, it would receive a lesser penalty than even a sexual assault against an adult, given the same criminal behavior by the actor, with 5 years for sexual assault w/minor, 1st degree. We were impressed with the testimony recently of Chief Judge Greene in the area of sentencing, particularly his statement that the new law should re duce disparities in punishment without falling into the trap of mandatory fixed sentences. We would also concur with the Judge in that any judge's discretion should be severely restricted except under unusal cases. We recognized that in the past there may have been abuse of the parole proc ess, and that perhaps some criminals have manipulated the system. However, since the judges would be required to state the reason for imprisonment, and if such reason was rehabilitation, it would appear that parole would be an effective tool in such instances. We do not envy the judge's having to state the specific reason for imprisonment, but in general approve of the concept. Although the LRC has indicated in its comments that there is reward for "good time" we are unable to see this implementation within the proposals. Similarly, while the LRC has indicated that the concept of grades of crimes would include enhancement of the sentence if weapons were used, we do not find this implemented in the proposals. We would also like to see a definite rule promulgated when there is recidivism, of any sort, and not that rigidly set forth in the proposals. (i.e. if the actor had been previously convicted of a crime involving sexual assault, he would be considered a repeat offender, regardless of how long before the previous crime had been perpetrated). We would suggest that as the LRC considers other alternatives, as it has indicated it will do, that it consider extending the maximum sentences possible. However, we do not take any stand on the issue of capital punishment. There do appear to be some sexual assaults of a criminal nature which would warrant greater than the 15 years presently considered the maximum (now only in sexual assault in the first degree). In this regard, we would strongly recommend raising all the sexual related crimes to at least one higher level of class; we cannot conceive of any prosecutions under the proposals for punishment for "unlawful sex with a ward" (2nd degree) (3 months) and few prosecutions under the misdemeanor classifications under which several others fall. Finally, we would question the advisability of allowing a criminal to appeal the sentence, but not to allow the prosecutor to do so. We would request that serious consideration be given to the allowance of such an appeal by both. We do not conceive that this would be in violation of the rights of the accused if the sentence was passed down with the knowledge that it could be appealed, nor could this be construed as placing the criminal in double jeopardy since the conviction would have already been rendered, regardless of the actual sentence. We hope that this discussion and testimony has been of assistance. We stand ready to do whatever we can to be of further assistance. We thank you for this opportunity to express our opinion, and for the chance to present written testimony. We remain, Sincerely yours, AUDRA B. RAFTER, ALICE A. BOOHER, CITIZENS FOR BETTER DRIVER RECORDS, COMMITTEE ON THE DISTRICT OF COLUMBIA, DEAR CHAIRMAN MAZZOLI: We would like to add our input to the District of Columbia Law Revision Commission proposals. As a national public interest group concentrating on the problem of the unlicensed and chronically offending driver we are particularly concerned with the type of penalty given in cases involving motor vehicle deaths (and serious injuries.) We recommend that your code include a provision for judging a driver who has caused a motor vehicle death (or serious injury) by laws and penalties covering manslaughter rather than laws and penalties covering negligent homicide if the responsible driver was driving without a valid license or had a seemingly valid license from another state while suspended from his home state. In order to determine the validity of his license, his driver record would have to be checked in all states in which he had been operating a motor vehicle. Sincerely, KEN NATHANSON, President, Citizens for Better Driver Records. CREATIVE ALTERNATIVES TO PRISON, LAW REVISION COMMISSION FOR THE DISTRICT OF COLUMBIA, 1411 K Street NW., Washington, D.C. COMMISSIONERS AND STAFF: The Law Revision Commission has proposed recommendations which indicate that the Commissioners are wisely aware of the current problems in Penology and Criminology. The Commission has specifically recommended that alternative "street sentences" be considered at sentencing. Prisons are a large financial loss for the society. A large percentage of the people in prison have not committed any crime of violence and do not need to be sequestered for the security of the society. By using creativity in sentencing, alternative service can be planned which will provide a direct service to the society, so that instead of society losing money on the crime itself, and on the punishment by supporting costly prisons, the society will benefit from the creative service work by the offenders. Statistics demonstrate that alternative service provides as much deterrence as prison. A creative exchange of ideas on punishment and alternative service at sentencing is needed to actualize the ideals already established by this Commission. The work of this Commission is impressive and has inspired us in working to prepare a proposal for a sentencing procedure which will foster the creative exchange of ideas necessary for planning constructive alternative sentences. Judicial time will be conserved because offenders are less likely to appeal an alternative sentence. Judicial time will also be conserved because plea bargaining will include the opportunity for constructive alternatives, and thereby increase the percentage of pleas. It requires little additional time to allow the defense attorney, the prosecuting attorney and the judge to participate in the proposed structure for the constructive exchange of arguments on alternatives appropriate to the individual offender and the crime. There is an enormous, untapped potential for benefit to the society by the creative use of alternatives to prison. We would welcome the opportunity to further discuss our detailed proposal with this commission. We have provided your staff with a copy of our detailed proposal for a sentencing procedure. Very truly yours, THOMAS P. DONELSON. LAW REVISION COMMISSION FOR THE DISTRICT OF COLUMBIA CHAPTER 20. SENTENCING OF OFFENDERS PROPOSED AMENDMENTS 22-2006. Determining the character of a term sentence (a) In General.-The sentencing judge shall (determine) make a preliminary determination of the character... ADD: After pronouncing the preliminary determination of the sentence, the judge shall hear and consider proposals for alternatives to the sentence in accordance with subsection (f). If the judge finds that no proposed alternatives are appropriate, the preliminary determination of sentence shall be imposed as the sentence. If the offender is a first-time offender, within the District of Columbia, either in Felony Class or Misdemeanor Class, the sentencing judge may suspend the imposition of judgment in accordance with Section (g). The sentencing judge shall have the authority to apportion the sentence of imprisonment and alternative service in any manner he finds appropriate. (NOTE. Italics is current language. Italics in parentheses ( ) is deleted. Standard type is additional or new ianguage.) ADD: (f) Proposed Sentencing Rules to Routinely Provide for the Full Consideration of Alternatives. (1) No person shall be sentenced until the defense has had the opportunity to present arguments for alternative service in programs of rehabilitation after the court has pronounced an initial determination of sentence without alternatives. This sentence cannot be made more severe, but can be altered to allow for alternative service. (2) No person shall be sentenced unless the court has determined that the defendant has been advised of all appropriate programs of rehabilitation and the requirements for participation in the various programs. The defense counsel has the responsibility for advising his client on available programs or for having this done by a social service agency. This rule, however, requires the court to determine whether or not the defense counsel has fulfilled this obligation to the defendant, and prohibits the court from proceeding if the defense counsel has in any way been derelict in advising the defendant about the possibility for alternative service in the various types of rehabilitation programs. (3) No person, who proposes alternative programs of rehabilitation, shall be sentenced until such proposal has been incorporated into the sentence to allow the alternative service, or the reasons for rejecting the defense proposals have been stated and an opportunity to reply has been granted to the defense. The court shall state its reasons for denying defense proposals for alternative service in terms of one or more of the following categories: (A) The defendant has a history of abscounding from rehabilitation programs and committing further violent crimes while at large when under a duty to participate in the programs as alternative service to a court sentence. (B) The proposed program is not sufficiently vigilant to provide reasonable security to the community. (C) The proposed program of rehabilitation is not sufficiently rigorous to be equivalent in punishment to the sentence without alternatives. (D) In this case, an equivalent amount of punishment in a rehabilitation program will have the appearance to prospective criminals or to possible victims in the community of being lenient, so more than equivalent punishment is required for the defendant to receive a sentence allowing alternative service. (E) The proposed program is not of sufficient duration to provide an equivalent amount of punishment to the sentence without alternatives. (F) The proposed program of rehabilitation is not well suited to the needs of the defendant. (G) The proposed program does not provide sufficiently frequent or sufficiently in-depth progress reports on the defendant. (4) No person shall be sentenced until the defense counselor has stated that all arguments on alternatives have been presented, and the court has determined from the defendant that all programs in which the defendant is willing to participate. This rule is null if a proposal advocated by the defense has been accepted by the court. (5) The defense shall be granted any reasonable postponements in order to prepare arguments for alternatives. No person shall suffer disadvantage by virtue of an unprepared defense counselor at sentencing. The court shall take steps to ensure that the defense counsel does a complete job of presenting arguments for alternatives; such steps shall include ordering postponements, admonishing the defense counsel or assigning a new defense counsel. (6) No person, who has presented arguments for alternative service in a program of rehabilitation, shall be ordered to serve a sentence without the provision for alternative service, unless a minimum of two weeks intervene between the hearing of the arguments and the ordering of the sentence. ADD: (g) The sentencing judge shall have the authority to suspend the imposition of judgment, pending the outcome of a term of supervision. The sentencing judge shall have authority to never impose the judgment, should the term of supervision be successfully completed. The sentencing judge may proscribe additional duties of the offender while under supervision in order for the offender to earn this cleansing of the offender's criminal record. (h) In order to facilitate plea bargaining, the sentencing judge may participate in the plea bargaining process and reach agreement on the character of the sentence to be imposed. |