Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred S.B. No. 2846 entitled:

begs leave to report as follows:

The purpose of this measure is to propose a constitutional amendment to allow the state Legislature to enact legislation for the inadmissibility of an alleged sexual assault victim's prior sexual history and of privileged confidential communications between the victim and the victim's physician, psychologist, counselor.

Testimony in support of this measure was received from the Department of the Attorney General, Honolulu Prosecuting Attorney, Honolulu Prosecuting Attorney Victim Witness Kokua Services, Maui Prosecuting Attorney, Honolulu Police Department, Hawaii County Police Department, Kauai Police Department, Sex Abuse Treatment Center, National Association of Social Workers, Hawaii Psychological Association, and four individuals. Testimony in opposition was received from the Office of the Public Defender and ACLU of Hawaii.

Your Committee finds that the State Supreme Court decision in State v. Peseti, 101 Haw. 172, 65 P.3d 119 (2003), eviscerates previously enacted state legislation designed to protect sexual assault victims from unwarranted "fishing expeditions" by criminal defendants into the victims' sexual histories and confidential communications with treatment providers. Your Committee further finds that to the extent that Peseti is based upon an interpretation of the State Constitution, this amendment would make clear that the Legislature intends that criminal defendants in sexual assault cases should not be afforded greater protections than those required by the Constitution of the United States.

Your Committee further finds that this amendment will reduce crime by encouraging victims to report sexual assaults. Victims will be more willing to come forward knowing that their past sexual histories will not be the subject of fishing expeditions designed to discourage victims from reporting criminal acts. This amendment will also reduce discovery and investigative demands made upon public agencies and treatment providers that have nothing to do with the guilt or innocence of the accused.

Your Committee has amended this measure to add "licensed mental health professional".

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