BILL REQ. #:  H-3615.1 

Prefiled 1/3/2006. Read first time 01/09/2006.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to imposing more severe punishment for certain sex offenses against children by increasing the minimum sentences for rape of a child in the first degree and child molestation in the first degree, when the offender was unknown to the victim prior to the crime, and rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, and kidnapping in the first degree with sexual motivation, when the victim was under a certain age at the time of the crime; amending RCW 9.94A.712 and 9.94A.712; adding new sections to chapter 9.94A RCW; prescribing penalties; providing an effective date; providing an expiration date; and declaring an emergency.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 9.94A RCW to read as follows:
     (1) In a prosecution for rape of a child in the first degree or child molestation in the first degree, the prosecuting attorney shall file a special allegation that the defendant was unknown to the victim prior to the commission of the offense whenever sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding by a reasonable and objective fact-finder that the defendant was unknown to the victim prior to the commission of the offense.
     (2) Once a special allegation has been made under this section, the state has the burden to prove beyond a reasonable doubt that the defendant was unknown to the victim prior to the commission of the offense. If a jury is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether the defendant was unknown to the victim prior to the commission of the offense. If no jury is had, the court shall make a finding of fact as to whether the defendant was unknown to the victim prior to the commission of the offense.
     (3) The prosecuting attorney shall not withdraw a special allegation filed under this section without the approval of the court through an order of dismissal of the allegation. The court may not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or that there are evidentiary problems that make proving the special allegation doubtful.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.94A RCW to read as follows:
     (1) In a prosecution for rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, or kidnapping in the first degree where a special allegation has been made under RCW 9.94A.835, the prosecuting attorney shall file a special allegation that the victim of the offense was under fifteen years of age at the time of the offense whenever sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding by a reasonable and objective fact-finder that the victim was under fifteen years of age at the time of the offense.
     (2) Once a special allegation has been made under this section, the state has the burden to prove beyond a reasonable doubt that the victim was under fifteen years of age at the time of the offense. If a jury is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether the victim was under the age of fifteen at the time of the offense. If no jury is had, the court shall make a finding of fact as to whether the victim was under the age of fifteen at the time of the offense.
     (3) The prosecuting attorney shall not withdraw a special allegation filed under this section without the approval of the court through an order of dismissal of the allegation. The court may not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or that there are evidentiary problems that make proving the special allegation doubtful.

Sec. 3   RCW 9.94A.712 and 2005 c 436 s 2 are each amended to read as follows:
     (1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
     (a) Is convicted of:
     (i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
     (ii) Any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree; or
     (iii) An attempt to commit any crime listed in this subsection (1)(a);
committed on or after September 1, 2001; or
     (b) Has a prior conviction for an offense listed in RCW 9.94A.030(33)(b), and is convicted of any sex offense which was committed after September 1, 2001.
     For purposes of this subsection (1)(b), failure to register is not a sex offense.
     (2) An offender convicted of rape of a child in the first or second degree or child molestation in the first degree who was seventeen years of age or younger at the time of the offense shall not be sentenced under this section.
     (3)(a) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term ((consisting of the statutory maximum sentence for the offense)) and a minimum term ((either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence)).
     (b) The maximum term shall consist of the statutory maximum sentence for the offense.
     (c)(i) Except as provided in (c)(ii) of this subsection, the minimum term shall be either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
     (ii) If the offense that caused the offender to be sentenced under this section was rape of a child in the first degree or child molestation in the first degree, and there has been a finding that the defendant was unknown to the victim prior to the offense under section 1 of this act, the minimum term shall be either the maximum of the standard sentence range or twenty-five years, whichever is greater. If the offense that caused the offender to be sentenced under this section was rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, or kidnapping in the first degree with a finding of sexual motivation, and there has been a finding that the victim was under the age of fifteen at the time of the offense under section 2 of this act, the minimum term shall be either the maximum of the standard range for the offense or twenty-five years, whichever is greater.
     (d) A minimum sentence imposed under (c)(ii) of this subsection shall not affect an offender's eligibility for the special sex offender sentencing alternative under RCW 9.94A.670 if the offender is otherwise eligible for the sentencing alternative.
     (4) A person sentenced under subsection (3) of this section shall serve the sentence in a facility or institution operated, or utilized under contract, by the state.
     (5) When a court sentences a person to the custody of the department under this section, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.
     (6)(a)(i) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community, and the department and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430.
     (ii) If the offense that caused the offender to be sentenced under this section was an offense listed in subsection (1)(a) of this section and the victim of the offense was under eighteen years of age at the time of the offense, the court shall, as a condition of community custody, prohibit the offender from residing in a community protection zone.
     (b) As part of any sentence under this section, the court shall also require the offender to comply with any conditions imposed by the board under RCW 9.94A.713 and 9.95.420 through 9.95.435.

Sec. 4   RCW 9.94A.712 and 2004 c 176 s 3 are each amended to read as follows:
     (1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
     (a) Is convicted of:
     (i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
     (ii) Any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree; or
     (iii) An attempt to commit any crime listed in this subsection (1)(a);
committed on or after September 1, 2001; or
     (b) Has a prior conviction for an offense listed in RCW 9.94A.030(32)(b), and is convicted of any sex offense which was committed after September 1, 2001.
     For purposes of this subsection (1)(b), failure to register is not a sex offense.
     (2) An offender convicted of rape of a child in the first or second degree or child molestation in the first degree who was seventeen years of age or younger at the time of the offense shall not be sentenced under this section.
     (3)(a) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term ((consisting of the statutory maximum sentence for the offense)) and a minimum term ((either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence)).
     (b) The maximum term shall consist of the statutory maximum sentence for the offense.
     (c)(i) Except as provided in (c)(ii) of this subsection, the minimum term shall be either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
     (ii) If the offense that caused the offender to be sentenced under this section was rape of a child in the first degree or child molestation in the first degree, and there has been a finding that the defendant was unknown to the victim prior to the offense under section 1 of this act, the minimum term shall be either the maximum of the standard sentence range or twenty-five years, whichever is greater. If the offense that caused the offender to be sentenced under this section was rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, or kidnapping in the first degree with a finding of sexual motivation, and there has been a finding that the victim was under the age of fifteen at the time of the offense under section 2 of this act, the minimum term shall be either the maximum of the standard range for the offense or twenty-five years, whichever is greater.
     (d) A minimum sentence imposed under (c)(ii) of this subsection shall not affect an offender's eligibility for the special sex offender sentencing alternative under RCW 9.94A.670 if the offender is otherwise eligible for the sentencing alternative.
     (4) A person sentenced under subsection (3) of this section shall serve the sentence in a facility or institution operated, or utilized under contract, by the state.
     (5) When a court sentences a person to the custody of the department under this section, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.
     (6)(a) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community, and the department and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430.
     (b) As part of any sentence under this section, the court shall also require the offender to comply with any conditions imposed by the board under RCW 9.94A.713 and 9.95.420 through 9.95.435.

NEW SECTION.  Sec. 5   Section 3 of this act expires July 1, 2006.

NEW SECTION.  Sec. 6   Section 4 of this act takes effect July 1, 2006.

NEW SECTION.  Sec. 7   Sections 1 through 3 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.