STAND. COM. REP. NO. 1211

Honolulu, Hawaii

RE: H.B. No. 177

H.D. 1

S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-First State Legislature

Regular Session of 2021

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 177, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO SEXUAL ASSAULT,"

begs leave to report as follows:

The purpose and intent of this measure is to amend the offenses of sexual assault in the first and third degree perpetrated against a person who is mentally defective to provide that there is a rebuttable presumption that the person assaulted was mentally defective.

Your Committee received testimony in support of this measure from the Department of the Prosecuting Attorney of the City and County of Honolulu and two individuals. Your Committee received testimony in opposition to this measure from the Office of the Public Defender.

Your Committee finds that mentally disabled persons need additional protection from sexual predators. Among adults who are developmentally disabled, as many as eighty-three percent of females and thirty-two percent of males are victims of sexual assault. Your Committee further finds that anywhere from fifteen thousand to nineteen thousand people with developmental disabilities are sexually assaulted each year in the United States. Forty percent of people with developmental disabilities who are victims of sexual violence will experience ten or more abusive incidents. Your Committee additionally finds that mentally disabled persons and developmentally disabled persons have limited, if any, capacity to give knowing and willing consent to sexual acts. Although your Committee finds that a need exists to extend protection to mentally disabled persons who have a diminished capacity to consent to sexual acts, the rebuttable presumption that a victim is mentally disabled could present constitutional challenges under the Fifth Amendment to the United States Constitution if a defendant is forced to testify to rebut the presumption.

Accordingly, your Committee has amended this measure by:

(1) Changing the state of mind element that a victim is mentally defective to negligence; and

(2) Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

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 H.B. No. 177, H.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 177, H.D. 1, S.D. 1, and be placed on the calendar for Third Reading.

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

________________________________

KARL RHOADS, Chair