as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to public safety; crime prevention; 1.3 authorizing asexualization of certain sex offenders; 1.4 amending Minnesota Statutes 2004, sections 609.342, 1.5 subdivision 2; 609.343, subdivision 2; 609.344, 1.6 subdivision 2; proposing coding for new law in 1.7 Minnesota Statutes, chapter 609. 1.8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.9 Section 1. [609.1075] [ASEXUALIZATION FOR CERTAIN SEX 1.10 OFFENDERS.] 1.11 Subdivision 1. [DEFINITIONS.] (a) As used in this section, 1.12 the following terms have the meanings given them. 1.13 (b) "Asexualization" or "asexualized" means the surgical 1.14 removal of the male testicles by a licensed physician. 1.15 (c) "Chemical castration" or "chemically castrated" means 1.16 the administration of pharmaceutical substances or hormones 1.17 prescribed by a licensed physician to a person to remove sexual 1.18 desire and aggression. 1.19 (d) "Sexual contact with a person under 13" has the meaning 1.20 given in section 609.341, subdivision 11, paragraph (c). 1.21 (e) "Sex crime" means a violation of section 609.342, 1.22 609.343, or 609.344 that involves sexual contact with a person 1.23 under 13. 1.24 (f) "Aggravated circumstances" include: 1.25 (1) the sex crime was especially serious, atrocious, or 1.26 cruel; 2.1 (2) the sex crime resulted in significant physical injury 2.2 to the victim; 2.3 (3) the sex crime was committed upon one victim by the 2.4 defendant two or more times within a 24-hour period; 2.5 (4) the sex crime was committed upon one victim by two or 2.6 more persons, acting in concert with the defendant; 2.7 (5) the sex crime was committed by a person while serving a 2.8 sentence for a sex crime conviction, or while subject to any 2.9 provision of a deferred prosecution agreement, suspended 2.10 sentence, or postimprisonment supervision for a sex crime; 2.11 (6) the existence of a prior juvenile delinquency 2.12 adjudication for a sex crime; and 2.13 (7) the existence of a prior conviction for a sex crime in 2.14 this state or another state. 2.15 Subd. 2. [SENTENCE OF CASTRATION.] Any person who commits 2.16 a sex crime may be punished by asexualization or chemical 2.17 castration in addition to any other penalty allowed by law for 2.18 the offense. Any person having been convicted of a sex crime 2.19 prior to August 1, 2005, may voluntarily consent to be 2.20 asexualized as provided in subdivision 6. Except when a 2.21 deferred or suspended sentence is prohibited by law, the court 2.22 may require chemical castration as a condition of a deferred 2.23 judgment or suspended sentence for a sex crime, and chemical 2.24 castration may be ordered as a condition of postimprisonment 2.25 supervision according to the procedures established in 2.26 subdivision 9. 2.27 Subd. 3. [HEARING.] (a) Upon conviction and before final 2.28 sentencing of a defendant for a sex crime, the court shall 2.29 conduct a hearing to determine whether or not the defendant 2.30 should be ordered asexualized or chemically castrated in 2.31 addition to any punishment allowable for the offense. The 2.32 hearing shall be conducted by the trial judge before the trial 2.33 jury as soon as practicable without any additional presentence 2.34 investigation. If the defendant waived his right to a jury or 2.35 if the defendant pleaded guilty or nolo contendere, the hearing 2.36 shall be conducted before the judge. 3.1 (b) In the hearing, evidence may be presented as to any 3.2 aggravating or mitigating circumstances. Aggravating 3.3 circumstances must be proved beyond a reasonable doubt. Only 3.4 evidence in aggravation as the state has presented at trial or 3.5 made known to the defendant prior to the hearing shall be 3.6 admissible. The state and the defendant or counsel for the 3.7 defendant shall be permitted to present their arguments for or 3.8 against asexualization or chemical castration. If the 3.9 prosecuting attorney fails to present any evidence of 3.10 aggravating circumstances at the hearing, the judge shall 3.11 terminate the hearing and proceed to final sentencing. 3.12 (c) At the conclusion of the hearing, the trial judge shall: 3.13 (1) if the hearing was conducted before the trial jury, 3.14 give the jury written instructions on aggravating circumstances 3.15 as warranted by the evidence. The jury shall designate in 3.16 writing, signed by the foreman of the jury, the statutory 3.17 aggravating circumstances which the jury unanimously found to 3.18 exist beyond a reasonable doubt and whether the aggravating 3.19 circumstances were outweighed by any mitigating circumstances as 3.20 determined by the jury; or 3.21 (2) enumerate for the record the aggravating circumstances 3.22 the judge found to exist beyond a reasonable doubt and whether 3.23 the aggravating circumstances were outweighed by any mitigating 3.24 circumstances as determined by the judge. 3.25 (d) When the judge or jury finds at least one aggravating 3.26 circumstance, then the judge may order the defendant chemically 3.27 castrated or asexualized. Chemical castration or asexualization 3.28 may not be ordered when the judge or jury concludes that any 3.29 aggravating circumstances are outweighed by mitigating 3.30 circumstances. Before asexualization may be ordered there must 3.31 have been a deoxyribonucleic acid (DNA) test submitted as 3.32 evidence for the purpose of determining guilt with a positive 3.33 identification made against the defendant by means of the test, 3.34 unless the defendant voluntarily waives this requirement. 3.35 Subd. 4. [AUTOMATIC APPELLATE REVIEW.] (a) If the penalty 3.36 of asexualization is imposed, and upon the judgment becoming 4.1 final in the trial court, the sentence shall be reviewed on the 4.2 record by the Court of Appeals. The clerk of the trial court, 4.3 within ten days after receiving the judgment, shall transmit the 4.4 entire record with the transcript of the hearing required by 4.5 subdivision 3 to the Court of Appeals, together with a notice 4.6 prepared by the clerk and a report prepared by the trial judge. 4.7 The notice shall set forth the title and docket number of the 4.8 case; the name of the defendant; the name and address of the 4.9 attorney of record; and a narrative statement of the judgment, 4.10 the offense, and the punishment imposed, including 4.11 asexualization and any other provisions. 4.12 (b) The Court of Appeals shall consider the asexualization 4.13 order as well as any errors in the hearing required under 4.14 subdivision 3 without the necessity of the defendant or counsel 4.15 for the defendant enumerating any errors from the trial 4.16 proceeding or making a direct appeal. 4.17 (c) With regard to the review of the sentence for 4.18 asexualization, the Court of Appeals shall determine whether: 4.19 (1) the defendant was eligible for the punishment of 4.20 asexualization; 4.21 (2) the sentence of asexualization was imposed under the 4.22 influence of prejudice or other arbitrary factor; 4.23 (3) the evidence supports the findings of one or more 4.24 statutory aggravating circumstances; and 4.25 (4) the evidence supports the findings that mitigating 4.26 circumstances did not outweigh the findings of the statutory 4.27 aggravating circumstances. 4.28 (d) Both the defendant and the state shall have the right 4.29 to submit briefs within the time provided by the court, and to 4.30 present oral argument to the court. 4.31 (e) The Court of Appeals shall include in its decision 4.32 relating to the asexualization proceeding and order a reference 4.33 to the factors taken into consideration. In addition to the 4.34 court's authority to review enumerated errors in the trial 4.35 proceeding pursuant to direct appeal, the Court of Appeals, with 4.36 regard to the review of an asexualization order, is authorized 5.1 to: 5.2 (1) affirm the sentence of asexualization; or 5.3 (2) set the sentence of asexualization aside and remand the 5.4 case for modification of the sentence. 5.5 (f) The review of an asexualization order by the Court of 5.6 Appeals shall be in addition to direct appeal, if taken. If a 5.7 direct appeal is made, the review of an asexualization order 5.8 shall be consolidated with the direct appeal for consideration. 5.9 If a review of an asexualization order has been consolidated 5.10 with a direct appeal, the Court of Appeals shall render its 5.11 decision on legal errors enumerated, the factual substantiation 5.12 of the verdict, and the provisions of the sentence. 5.13 Subd. 5. [ENFORCEMENT OF SENTENCE.] If a defendant is 5.14 ordered asexualized, the Department of Corrections shall secure 5.15 the services of a licensed physician for the asexualization 5.16 procedure, which shall be completed prior to release of the 5.17 person from confinement to a suspended sentence, or to a period 5.18 of postimprisonment supervision. The Department of Corrections 5.19 shall bear all costs of the surgeon and surgical facilities for 5.20 persons receiving asexualization, except as provided in 5.21 subdivision 6. An asexualization procedure may be scheduled to 5.22 be performed 30 days following the date of the Court of Appeals' 5.23 decision or any time thereafter, but before release from custody. 5.24 Subd. 6. [VOLUNTARY ASEXUALIZATION.] (a) Any person 5.25 incarcerated in the Department of Corrections who desires to be 5.26 asexualized may voluntarily request the procedure from the 5.27 Department of Corrections. The department shall not be required 5.28 to file a petition for a court order on behalf of the inmate 5.29 requesting asexualization, but the department shall perform the 5.30 procedure only if: 5.31 (1) the inmate is 21 years of age or older; 5.32 (2) the inmate requests the procedure in writing; 5.33 (3) the inmate has signed a statement admitting the offense 5.34 for which he was convicted and the offense is a sex crime; 5.35 (4) a psychiatrist and a psychologist who are appointed by 5.36 the department and have experience in the treatment of sex 6.1 offenders have evaluated the inmate and have determined that the 6.2 inmate is a suitable candidate for the procedure, the inmate is 6.3 free from coercion in the decision to have the asexualization 6.4 procedure, and the inmate has received counseling prior to 6.5 undergoing the procedure; 6.6 (5) the inmate has not previously requested the procedure 6.7 and subsequently withdrawn the request; and 6.8 (6) the physician performing the procedure has obtained the 6.9 informed written consent of the inmate to undergo the procedure. 6.10 (b) An inmate voluntarily requesting asexualization may 6.11 withdraw the request any time before the physician performs the 6.12 procedure. An inmate who withdraws a request for asexualization 6.13 is ineligible to apply to have the procedure performed by the 6.14 department at any other time. 6.15 (c) An inmate voluntarily requesting asexualization may 6.16 select a physician to perform the procedure, provided the inmate 6.17 pays the cost of the procedure and surgeon. 6.18 Subd. 7. [TREATING PHYSICIAN.] A licensed physician 6.19 selected to perform an asexualization procedure shall be 6.20 responsible for examination of the person, scheduling suitable 6.21 surgical facilities where the surgery will be performed, and 6.22 surgically removing the male testicles of the person as required 6.23 by court order or voluntary consent. 6.24 Subd. 8. [IMMUNITY.] (a) The Department of Corrections 6.25 shall be immune from liability for scheduling the surgical 6.26 procedure and facilities and selecting the licensed physician to 6.27 perform the procedure. 6.28 (b) A licensed physician who performs an asexualization 6.29 procedure is not liable for an act or omission relating to the 6.30 procedure, unless the act or omission constitutes negligence. 6.31 Subd. 9. [CHEMICAL CASTRATION.] If a defendant is ordered 6.32 chemically castrated or if chemical castration is ordered as a 6.33 condition of a deferred or suspended sentence or as a condition 6.34 of postimprisonment supervision, the Department of Corrections 6.35 shall require the defendant to submit to the prescribed 6.36 treatment to effect chemical castration. The department shall 7.1 bear the cost of the treatment, unless it is determined by the 7.2 department that the defendant has the ability to pay all or part 7.3 of the treatment. Failure of the defendant to submit to 7.4 chemical castration when ordered as a condition of release is 7.5 grounds for revocation of the sentence or postimprisonment 7.6 supervision. 7.7 [EFFECTIVE DATE.] This section is effective August 1, 2005, 7.8 and applies to offenses committed on or after that date. 7.9 Sec. 2. Minnesota Statutes 2004, section 609.342, 7.10 subdivision 2, is amended to read: 7.11 Subd. 2. [PENALTY.] (a) Except as otherwise provided in 7.12 section 609.109, a person convicted under subdivision 1 may be 7.13 sentenced to imprisonment for not more than 30 years or to a 7.14 payment of a fine of not more than $40,000, or both. 7.15 (b) Unless a longer mandatory minimum sentence is otherwise 7.16 required by law or the Sentencing Guidelines provide for a 7.17 longer presumptive executed sentence, the court shall presume 7.18 that an executed sentence of 144 months must be imposed on an 7.19 offender convicted of violating this section. Sentencing a 7.20 person in a manner other than that described in this paragraph 7.21 is a departure from the Sentencing Guidelines. 7.22 (c) In addition to any other sentence permitted by law, a 7.23 person convicted under subdivision 1 may be subject to 7.24 asexualization or chemical castration as provided for in section 7.25 609.1075. 7.26 [EFFECTIVE DATE.] This section is effective August 1, 2005, 7.27 and applies to offenses committed on or after that date. 7.28 Sec. 3. Minnesota Statutes 2004, section 609.343, 7.29 subdivision 2, is amended to read: 7.30 Subd. 2. [PENALTY.] (a) Except as otherwise provided in 7.31 section 609.109, a person convicted under subdivision 1 may be 7.32 sentenced to imprisonment for not more than 25 years or to a 7.33 payment of a fine of not more than $35,000, or both. 7.34 (b) Unless a longer mandatory minimum sentence is otherwise 7.35 required by law or the Sentencing Guidelines provide for a 7.36 longer presumptive executed sentence, the court shall presume 8.1 that an executed sentence of 90 months must be imposed on an 8.2 offender convicted of violating subdivision 1, clause (c), (d), 8.3 (e), (f), or (h). Sentencing a person in a manner other than 8.4 that described in this paragraph is a departure from the 8.5 Sentencing Guidelines. 8.6 (c) In addition to any other sentence permitted by law, a 8.7 person convicted under subdivision 1 may be subject to 8.8 asexualization or chemical castration as provided for in section 8.9 609.1075. 8.10 [EFFECTIVE DATE.] This section is effective August 1, 2005, 8.11 and applies to offenses committed on or after that date. 8.12 Sec. 4. Minnesota Statutes 2004, section 609.344, 8.13 subdivision 2, is amended to read: 8.14 Subd. 2. [PENALTY.] (a) A person convicted under 8.15 subdivision 1 may be sentenced to imprisonment for not more than 8.16 15 years or to a payment of a fine of not more than $30,000, or 8.17 both. 8.18 (b) In addition to any other sentence permitted by law, a 8.19 person convicted under subdivision 1 may be subject to 8.20 asexualization or chemical castration as provided for in section 8.21 609.1075. 8.22 [EFFECTIVE DATE.] This section is effective August 1, 2005, 8.23 and applies to offenses committed on or after that date.