HF 1131

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to public safety; crime prevention;
authorizing asexualization of certain sex offenders;
amending Minnesota Statutes 2004, sections 609.342,
subdivision 2; 609.343, subdivision 2; 609.344,
subdivision 2; proposing coding for new law in
Minnesota Statutes, chapter 609.

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

Section 1.

[609.1075] ASEXUALIZATION FOR CERTAIN SEX
OFFENDERS.

Subdivision 1.

Definitions.

(a) As used in this section,
the following terms have the meanings given them.

(b) "Asexualization" or "asexualized" means the surgical
removal of the male testicles by a licensed physician.

(c) "Chemical castration" or "chemically castrated" means
the administration of pharmaceutical substances or hormones
prescribed by a licensed physician to a person to remove sexual
desire and aggression.

(d) "Sexual contact with a person under 13" has the meaning
given in section 609.341, subdivision 11, paragraph (c).

(e) "Sex crime" means a violation of section 609.342,
609.343, or 609.344 that involves sexual contact with a person
under 13.

(f) "Aggravated circumstances" include:

(1) the sex crime was especially serious, atrocious, or
cruel;

(2) the sex crime resulted in significant physical injury
to the victim;

(3) the sex crime was committed upon one victim by the
defendant two or more times within a 24-hour period;

(4) the sex crime was committed upon one victim by two or
more persons, acting in concert with the defendant;

(5) the sex crime was committed by a person while serving a
sentence for a sex crime conviction, or while subject to any
provision of a deferred prosecution agreement, suspended
sentence, or postimprisonment supervision for a sex crime;

(6) the existence of a prior juvenile delinquency
adjudication for a sex crime; and

(7) the existence of a prior conviction for a sex crime in
this state or another state.

Subd. 2.

Sentence of castration.

Any person who commits
a sex crime may be punished by asexualization or chemical
castration in addition to any other penalty allowed by law for
the offense. Any person having been convicted of a sex crime
prior to August 1, 2005, may voluntarily consent to be
asexualized as provided in subdivision 6. Except when a
deferred or suspended sentence is prohibited by law, the court
may require chemical castration as a condition of a deferred
judgment or suspended sentence for a sex crime, and chemical
castration may be ordered as a condition of postimprisonment
supervision according to the procedures established in
subdivision 9.

Subd. 3.

Hearing.

(a) Upon conviction and before final
sentencing of a defendant for a sex crime, the court shall
conduct a hearing to determine whether or not the defendant
should be ordered asexualized or chemically castrated in
addition to any punishment allowable for the offense. The
hearing shall be conducted by the trial judge before the trial
jury as soon as practicable without any additional presentence
investigation. If the defendant waived his right to a jury or
if the defendant pleaded guilty or nolo contendere, the hearing
shall be conducted before the judge.

(b) In the hearing, evidence may be presented as to any
aggravating or mitigating circumstances. Aggravating
circumstances must be proved beyond a reasonable doubt. Only
evidence in aggravation as the state has presented at trial or
made known to the defendant prior to the hearing shall be
admissible. The state and the defendant or counsel for the
defendant shall be permitted to present their arguments for or
against asexualization or chemical castration. If the
prosecuting attorney fails to present any evidence of
aggravating circumstances at the hearing, the judge shall
terminate the hearing and proceed to final sentencing.

(c) At the conclusion of the hearing, the trial judge shall:

(1) if the hearing was conducted before the trial jury,
give the jury written instructions on aggravating circumstances
as warranted by the evidence. The jury shall designate in
writing, signed by the foreman of the jury, the statutory
aggravating circumstances which the jury unanimously found to
exist beyond a reasonable doubt and whether the aggravating
circumstances were outweighed by any mitigating circumstances as
determined by the jury; or

(2) enumerate for the record the aggravating circumstances
the judge found to exist beyond a reasonable doubt and whether
the aggravating circumstances were outweighed by any mitigating
circumstances as determined by the judge.

(d) When the judge or jury finds at least one aggravating
circumstance, then the judge may order the defendant chemically
castrated or asexualized. Chemical castration or asexualization
may not be ordered when the judge or jury concludes that any
aggravating circumstances are outweighed by mitigating
circumstances. Before asexualization may be ordered there must
have been a deoxyribonucleic acid (DNA) test submitted as
evidence for the purpose of determining guilt with a positive
identification made against the defendant by means of the test,
unless the defendant voluntarily waives this requirement.

Subd. 4.

Automatic appellate review.

(a) If the penalty
of asexualization is imposed, and upon the judgment becoming
final in the trial court, the sentence shall be reviewed on the
record by the Court of Appeals. The clerk of the trial court,
within ten days after receiving the judgment, shall transmit the
entire record with the transcript of the hearing required by
subdivision 3 to the Court of Appeals, together with a notice
prepared by the clerk and a report prepared by the trial judge.
The notice shall set forth the title and docket number of the
case; the name of the defendant; the name and address of the
attorney of record; and a narrative statement of the judgment,
the offense, and the punishment imposed, including
asexualization and any other provisions.

(b) The Court of Appeals shall consider the asexualization
order as well as any errors in the hearing required under
subdivision 3 without the necessity of the defendant or counsel
for the defendant enumerating any errors from the trial
proceeding or making a direct appeal.

(c) With regard to the review of the sentence for
asexualization, the Court of Appeals shall determine whether:

(1) the defendant was eligible for the punishment of
asexualization;

(2) the sentence of asexualization was imposed under the
influence of prejudice or other arbitrary factor;

(3) the evidence supports the findings of one or more
statutory aggravating circumstances; and

(4) the evidence supports the findings that mitigating
circumstances did not outweigh the findings of the statutory
aggravating circumstances.

(d) Both the defendant and the state shall have the right
to submit briefs within the time provided by the court, and to
present oral argument to the court.

(e) The Court of Appeals shall include in its decision
relating to the asexualization proceeding and order a reference
to the factors taken into consideration. In addition to the
court's authority to review enumerated errors in the trial
proceeding pursuant to direct appeal, the Court of Appeals, with
regard to the review of an asexualization order, is authorized
to:

(1) affirm the sentence of asexualization; or

(2) set the sentence of asexualization aside and remand the
case for modification of the sentence.

(f) The review of an asexualization order by the Court of
Appeals shall be in addition to direct appeal, if taken. If a
direct appeal is made, the review of an asexualization order
shall be consolidated with the direct appeal for consideration.
If a review of an asexualization order has been consolidated
with a direct appeal, the Court of Appeals shall render its
decision on legal errors enumerated, the factual substantiation
of the verdict, and the provisions of the sentence.

Subd. 5.

Enforcement of sentence.

If a defendant is
ordered asexualized, the Department of Corrections shall secure
the services of a licensed physician for the asexualization
procedure, which shall be completed prior to release of the
person from confinement to a suspended sentence, or to a period
of postimprisonment supervision. The Department of Corrections
shall bear all costs of the surgeon and surgical facilities for
persons receiving asexualization, except as provided in
subdivision 6. An asexualization procedure may be scheduled to
be performed 30 days following the date of the Court of Appeals'
decision or any time thereafter, but before release from custody.

Subd. 6.

Voluntary asexualization.

(a) Any person
incarcerated in the Department of Corrections who desires to be
asexualized may voluntarily request the procedure from the
Department of Corrections. The department shall not be required
to file a petition for a court order on behalf of the inmate
requesting asexualization, but the department shall perform the
procedure only if:

(1) the inmate is 21 years of age or older;

(2) the inmate requests the procedure in writing;

(3) the inmate has signed a statement admitting the offense
for which he was convicted and the offense is a sex crime;

(4) a psychiatrist and a psychologist who are appointed by
the department and have experience in the treatment of sex
offenders have evaluated the inmate and have determined that the
inmate is a suitable candidate for the procedure, the inmate is
free from coercion in the decision to have the asexualization
procedure, and the inmate has received counseling prior to
undergoing the procedure;

(5) the inmate has not previously requested the procedure
and subsequently withdrawn the request; and

(6) the physician performing the procedure has obtained the
informed written consent of the inmate to undergo the procedure.

(b) An inmate voluntarily requesting asexualization may
withdraw the request any time before the physician performs the
procedure. An inmate who withdraws a request for asexualization
is ineligible to apply to have the procedure performed by the
department at any other time.

(c) An inmate voluntarily requesting asexualization may
select a physician to perform the procedure, provided the inmate
pays the cost of the procedure and surgeon.

Subd. 7.

Treating physician.

A licensed physician
selected to perform an asexualization procedure shall be
responsible for examination of the person, scheduling suitable
surgical facilities where the surgery will be performed, and
surgically removing the male testicles of the person as required
by court order or voluntary consent.

Subd. 8.

Immunity.

(a) The Department of Corrections
shall be immune from liability for scheduling the surgical
procedure and facilities and selecting the licensed physician to
perform the procedure.

(b) A licensed physician who performs an asexualization
procedure is not liable for an act or omission relating to the
procedure, unless the act or omission constitutes negligence.

Subd. 9.

Chemical castration.

If a defendant is ordered
chemically castrated or if chemical castration is ordered as a
condition of a deferred or suspended sentence or as a condition
of postimprisonment supervision, the Department of Corrections
shall require the defendant to submit to the prescribed
treatment to effect chemical castration. The department shall
bear the cost of the treatment, unless it is determined by the
department that the defendant has the ability to pay all or part
of the treatment. Failure of the defendant to submit to
chemical castration when ordered as a condition of release is
grounds for revocation of the sentence or postimprisonment
supervision.

EFFECTIVE DATE.

This section is effective August 1, 2005,
and applies to offenses committed on or after that date.

Sec. 2.

Minnesota Statutes 2004, section 609.342,
subdivision 2, is amended to read:

Subd. 2.

Penalty.

(a) Except as otherwise provided in
section 609.109, a person convicted under subdivision 1 may be
sentenced to imprisonment for not more than 30 years or to a
payment of a fine of not more than $40,000, or both.

(b) Unless a longer mandatory minimum sentence is otherwise
required by law or the Sentencing Guidelines provide for a
longer presumptive executed sentence, the court shall presume
that an executed sentence of 144 months must be imposed on an
offender convicted of violating this section. Sentencing a
person in a manner other than that described in this paragraph
is a departure from the Sentencing Guidelines.

(c) In addition to any other sentence permitted by law, a
person convicted under subdivision 1 may be subject to
asexualization or chemical castration as provided for in section
609.1075.

EFFECTIVE DATE.

This section is effective August 1, 2005,
and applies to offenses committed on or after that date.

Sec. 3.

Minnesota Statutes 2004, section 609.343,
subdivision 2, is amended to read:

Subd. 2.

Penalty.

(a) Except as otherwise provided in
section 609.109, a person convicted under subdivision 1 may be
sentenced to imprisonment for not more than 25 years or to a
payment of a fine of not more than $35,000, or both.

(b) Unless a longer mandatory minimum sentence is otherwise
required by law or the Sentencing Guidelines provide for a
longer presumptive executed sentence, the court shall presume
that an executed sentence of 90 months must be imposed on an
offender convicted of violating subdivision 1, clause (c), (d),
(e), (f), or (h). Sentencing a person in a manner other than
that described in this paragraph is a departure from the
Sentencing Guidelines.

(c) In addition to any other sentence permitted by law, a
person convicted under subdivision 1 may be subject to
asexualization or chemical castration as provided for in section
609.1075.

EFFECTIVE DATE.

This section is effective August 1, 2005,
and applies to offenses committed on or after that date.

Sec. 4.

Minnesota Statutes 2004, section 609.344,
subdivision 2, is amended to read:

Subd. 2.

Penalty.

(a) A person convicted under
subdivision 1 may be sentenced to imprisonment for not more than
15 years or to a payment of a fine of not more than $30,000, or
both.

(b) In addition to any other sentence permitted by law, a
person convicted under subdivision 1 may be subject to
asexualization or chemical castration as provided for in section
609.1075.

EFFECTIVE DATE.

This section is effective August 1, 2005,
and applies to offenses committed on or after that date.