AN ACT Relating to castration of sex offenders; adding new sections to chapter 9.94A RCW; creating a new section; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature finds that the recidivism rates for many male sex offenders is extremely high. The legislature further finds that substantial evidence exists through the experience of foreign nations that physical castration of male sex offenders can dramatically reduce this rate of recidivism. Because of the compelling state interest in protecting potential victims from rape, the legislature concludes that in some cases it is appropriate to require castration of convicted rapists and that in other cases it is appropriate to offer castration as a choice for convicted rapists.

NEW SECTION. Sec. 2. (1) "Castration" for purposes of sections 2 through 12 of this act means the surgical removal of the testicles when ordered or authorized by a court and when performed by a licensed physician in accordance with rules adopted by the department of corrections.

(2) Whenever a male offender is convicted of first degree rape, the trier of fact in the case shall determine in a special sentencing hearing as provided for under sections 3 through 12 of this act whether the offender would be less likely to reoffend if castrated. The provisions of sections 3 through 12 of this act do not affect the applicability of any other sentencing provision in this chapter.

(3) A male offender who is not subject to subsection (2) of this section and who has been convicted of a felony violation of chapter 9A.44 RCW may qualify for the special sentencing provisions of this subsection by voluntarily undergoing physical castration.

(a) Following conviction and before sentencing, the court may authorize physical castration of an offender upon the request of the offender and after the offender has been afforded a hearing. The hearing shall be conducted in accordance with rules adopted by the state supreme court and shall be for the purpose of allowing the court to determine whether the offender's request for castration is made voluntarily and with knowledge of the legal and medical consequences of his choice. If the court determines that the request is voluntary and knowing, the court shall authorize the castration.

(b) The presumptive sentencing range under RCW 9.94A.310 for an offense to which this subsection applies is reduced by fifty percent for an offender undergoing voluntary castration in accordance with this subsection. This special sentence reduction does not apply to any offense for which sentencing was imposed before the castration or to any offense for which a conviction was obtained after the castration.

NEW SECTION. Sec. 3. (1) If a male offender is charged with first degree rape, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not castration should be imposed when there is sufficient reason to believe that castration will reduce the likelihood that the offender will commit another sex offense.

(2) The notice of special sentencing proceeding shall be filed and served on the offender or the offender's attorney within thirty days after the offender's arraignment unless the court, for good cause shown, extends or reopens the period for filing and service of the notice. Except with the consent of the prosecuting attorney, during the period in which the prosecuting attorney may file the notice of special sentencing proceeding, the offender may not tender a plea of guilty to the charge of first degree rape nor may the court accept a plea of guilty to the charge of first degree rape or any lesser included offense.

(3) If a notice of special sentencing proceeding is not filed and served as provided in this section, the prosecuting attorney may not request castration.

NEW SECTION. Sec. 4. (1) If an offender is adjudicated guilty of first degree rape, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, a special sentencing proceeding shall be held if a notice of special sentencing proceeding was filed and served as provided in section 2 of this act. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held.

(2) A jury shall decide the matters presented in the special sentencing proceeding unless a jury is waived in the discretion of the court and with the consent of the offender and the prosecuting attorney.

(3) If the offender's guilt was determined by a jury verdict, the trial court shall reconvene the same jury to hear the special sentencing proceeding. The proceeding shall commence as soon as practicable after completion of the trial at which the offender's guilt was determined. If, however, unforeseen circumstances make it impracticable to reconvene the same jury to hear the special sentencing proceeding, the trial court may dismiss that jury and convene a jury pursuant to subsection (4) of this section.

(4) If the offender's guilt was determined by a plea of guilty or by decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary. The defense and prosecution shall each be allowed to peremptorily challenge twelve jurors. If there is more than one offender, each offender shall be allowed an additional peremptory challenge and the prosecution shall be allowed a like number of additional challenges. If alternate jurors are selected, the defense and prosecution shall each be allowed one peremptory challenge for each alternate juror to be selected and if there is more than one offender each offender shall be allowed an additional peremptory challenge for each alternate juror to be selected and the prosecution shall be allowed a like number of additional challenges.

NEW SECTION. Sec. 5. (1) At the commencement of the special sentencing proceeding, the trial court shall instruct the jury as to the nature and purpose of the proceeding and as to the consequences of its decision.

(2) At the special sentencing proceeding both the prosecution and defense shall be allowed to make an opening statement. The prosecution shall first present evidence and then the defense may present evidence. Rebuttal evidence may be presented by each side. Upon conclusion of the evidence, the court shall instruct the jury and then the prosecution and defense shall be permitted to present argument. The prosecution shall open and conclude the argument.

(3) The court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence and evidence of the offender's previous criminal activity regardless of whether the offender has been charged or convicted as a result of such activity. The offender shall be accorded a fair opportunity to rebut or offer any hearsay evidence.

If the jury sitting in the special sentencing proceeding has not heard evidence of the first degree rape of which the offender stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the rape.

(4) Upon conclusion of the evidence and argument at the special sentencing proceeding, the jury shall retire to deliberate upon the following question: "Having in mind the crime of which the offender has been found guilty, are you convinced beyond a reasonable doubt that the offender should be castrated?"

In order to return an affirmative answer to the question posed by this subsection, the jury must so find unanimously.

NEW SECTION. Sec. 6. In deciding the question posed by section 5(4) of this act, the jury, or the court if a jury is waived, may consider any relevant factors, including but not limited to the following:

(1) Whether the offender has or does not have a significant history, either as a juvenile or an adult, of prior criminal sexual activity;

(2) Whether the rape was committed while the offender was under the influence of extreme mental disturbance;

(3) Whether the offender acted under duress or domination of another person;

(4) Whether, at the time of the rape, the capacity of the offender to appreciate the wrongfulness of the offender's conduct or to conform the offender's conduct to the requirements of law was substantially impaired as a result of mental disease or defect;

(5) Whether the age of the offender indicates a greater or lesser likelihood that treatment or incarceration will reduce the likelihood that the offender will commit further sex offenses during incarceration or when he is no longer incarcerated; and

(6) Whether there is a likelihood that the offender will pose a danger to others in the future.

NEW SECTION. Sec. 7. (1) If a jury answers affirmatively the question posed by section 5(4) of this act, or when a jury is waived and the trial court answers affirmatively the question posed by section 5(4) of this act, the offender shall be sentenced to be castrated. The trial court may not suspend or defer the execution or imposition of the sentence.

(2) If the jury does not return an affirmative answer to the question posed in section 5(4) of this act, the offender shall not be sentenced to be castrated.

NEW SECTION. Sec. 8. Whenever an offender is sentenced to be castrated, upon entry of the judgment and sentence in the trial court the sentence shall be reviewed on the record by the supreme court of Washington.

Within ten days of the entry of a judgment and sentence imposing the sentence of castration, the clerk of the trial court shall transmit notice thereof to the clerk of the supreme court of Washington and to the parties. The notice shall include the caption of the case, its cause number, the offender's name, the crime or crimes of which the offender was convicted, the sentence imposed, the date of entry of judgment and sentence, and the names and addresses of the attorneys for the parties. The notice shall vest with the supreme court of Washington the jurisdiction to review the sentence of castration as provided by this chapter. The failure of the clerk of the trial court to transmit the notice as required shall not prevent the supreme court of Washington from conducting the sentence review as provided by sections 9 through 11 of this act.

NEW SECTION. Sec. 9. (1) Within ten days after the entry of a judgment and sentence imposing the sentence of castration, the clerk of the trial court shall cause the preparation of a verbatim report of the trial proceedings to be commenced.

(2) Within five days of the filing and approval of the verbatim report of proceedings, the clerk of the trial court shall transmit such verbatim report of proceedings together with copies of all of the clerk's papers to the clerk of the supreme court of Washington. The clerk of the supreme court of Washington shall forthwith acknowledge receipt of these documents by providing notice of receipt to the clerk of the trial court, the offender or the offender's attorney, and the prosecuting attorney.

NEW SECTION. Sec. 10. In all cases in which a male offender is convicted of first degree rape, the trial court shall, within thirty days after the entry of the judgment and sentence, submit a report to the clerk of the supreme court of Washington, to the offender or the offender's attorney, and to the prosecuting attorney which provides the information specified under subsections (1) through (8) of this section. The report shall be in the form of a standard questionnaire prepared and supplied by the supreme court of Washington and shall include the following:

(1) Information about the offender, including the following:

(a) Name, date of birth, marital status, and race and/or ethnic origin;

(b) Number and ages of children;

(d) Number of children born to his parents;

(e) The offender's educational background, intelligence level, and intelligence quotient;

(f) Whether a psychiatric evaluation was performed, and if so, whether it indicated that the offender was:

(i) Able to distinguish right from wrong;

(ii) Able to perceive the nature and quality of his act; and

(iii) Able to cooperate intelligently with his defense;

(g) Any character or behavior disorders found or other pertinent psychiatric or psychological information;

(h) The work record of the offender;

(i) A list of the offender's prior convictions including the offense, date, and sentence imposed; and

(j) The length of time the offender has resided in Washington and the county in which he was convicted.

(2) Information about the trial, including:

(a) The offender's plea;

(b) Whether offender was represented by counsel;

(c) Whether there was evidence introduced or instructions given as to defenses to first degree rape, insanity, duress, entrapment, alibi, intoxication, or other specific defense;

(d) Any other offenses charged against the offender and tried at the same trial and whether they resulted in conviction;

(e) Names and charges filed against other offenders if tried jointly and disposition of the charges.

(3) Information concerning the special sentencing proceeding, including:

(a) The date the offender was convicted and date the special sentencing proceeding commenced;

(b) Whether the jury for the special sentencing proceeding was the same jury that returned the guilty verdict, providing an explanation if it was not;

(d) The sentence imposed.

(4) Information about the victim, including:

(a) Whether he or she was related to the offender by blood or marriage;

(b) The victim's occupation and whether he or she was an employer or employee of the offender;

(d) The length of time the victim resided in Washington and the county;

(e) Whether the victim was the same race and/or ethnic origin as the offender;

(f) Whether the victim was the same sex as the offender;

(g) Whether the victim was held hostage during the crime and if so, how long;

(h) The nature and extent of any physical harm or torture inflicted upon the victim before, during, or after the rape;

(i) The victim's age; and

(j) The type of weapon used in the crime, if any.

(5) Information about the representation of the offender, including:

(a) Date counsel was secured;

(b) Whether counsel was retained or appointed, including the reason for appointment;

(d) Whether the same counsel served at both the trial and special sentencing proceeding, and if not, why not.

(6) General considerations, including:

(a) Whether the race and/or ethnic origin of the offender, victim, or any witness was an apparent factor at trial;

(b) What percentage of the county population is the same race and/or ethnic origin of the offender;

(d) Whether there was evidence that such members were systematically excluded from the jury;

(e) Whether the sexual orientation of the offender, victim, or any witness was a factor in the trial;

(f) Whether any specific instruction was given to the jury to exclude race, ethnic origin, or sexual orientation as an issue;

(g) Whether there was extensive publicity concerning the case in the community;

(h) Whether the jury was instructed to disregard such publicity;

(i) Whether the jury was instructed to avoid any influence of passion, prejudice, or any other arbitrary factor when considering its verdict or its findings in the special sentencing proceeding;

(j) The nature of the evidence resulting in such instruction; and

(k) General comments of the trial judge concerning the appropriateness of the sentence considering the crime, offender, and other relevant factors.

(7) Information about the chronology of the case, including the date that:

(a) The offender was arrested;

(b) Trial began;

(d) Posttrial motions were ruled on;

(e) Special sentencing proceeding began;

(f) Sentence was imposed;

(g) Trial judge's report was completed; and

(h) Trial judge's report was filed.

(8) The trial judge shall sign and date the questionnaire when it is completed.

NEW SECTION. Sec. 11. (1) The sentence review required by section 8 of this act shall be in addition to any appeal. The sentence review and an appeal shall be consolidated for consideration. The offender and the prosecuting attorney may submit briefs within the time prescribed by the court and present oral argument to the court.

(2) With regard to the sentence review required by section 8 of this act, the supreme court of Washington shall determine:

(a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by section 5(4) of this act; and

(b) Whether the sentence of castration was brought about through passion or prejudice.

NEW SECTION. Sec. 12. Upon completion of a sentence review:

(1) The supreme court of Washington shall invalidate the sentence of castration if:

(a) The court makes a negative determination as to the question posed by section 11(2)(a) of this act; or

(b) The court makes an affirmative determination as to the question posed by section 11(2)(b) of this act.

(2) The court shall affirm the sentence of castration and remand the case to the trial court for execution if:

(a) The court makes an affirmative determination as to the question posed by section 11(2)(a) of this act; and

(b) The court makes a negative determination as to the question posed by section 11(2)(b) of this act.

NEW SECTION. Sec. 13. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 14. Sections 2 through 12 of this act are each added to chapter 9.94A RCW.

NEW SECTION. Sec. 15. This act shall take effect July 1, 1990.