Mr. CONYERS. Our next witness is representing the Department of Justice. He is Deputy Assistant Attorney General Mark Richard, who has been involved in a wide range of criminal justice matters. Welcome again to the subcommittee, sir.

STATEMENT OF MARK M. RICHARD, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. RICHARD. Thank you, Mr. Chairman.

My name is Mark Richard. I am a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice. I appreciate the opportunity to present the views of the Department of Justice on H.R. 596, the Sexual Assault Act of 1985.

With your permission, Mr. Chairman, I would like to submit my written statement for the record and merely summarize it to preserve time.

Mr. CONYERS. Without objection it will be included in the record. Mr. RICHARD. Thank you.

The Department of Justice strongly supports enactment of the bill which would bring about needed reform of the current Federal sexual offense laws. There are some, what I will describe as minor modifications, which we believe would improve the bill, and I shall explain them later in more detail.

H.R. 596 replaces the current rape and statutory rape laws in title 18 of the United States Code with a series of graded offenses. It substitutes more modern terms, such as "aggravated sexual abuse" and "sexual abuse" for common law terms such as "rape" and "carnal knowledge," and includes a precise description of the conduct prohibited. It also eliminates the spousal exception in current law and makes Federal provisions sex neutral.

The most serious offense under H.R. 596 is aggravated sexual abuse, which consists of knowingly causing another person to engage in a sexual act by force or threat of death, serious bodily injury, or kidnapping. Under H.R. 596, aggravated sexual abuse and the attempt to commit this offense would be punishable by a maximum of life imprisonment and a $250,000 fine.

The second most serious offense under the bill is sexual abuse. This offense and the attempt to commit it would be punishable by a maximum of 20 years imprisonment and a $250,000 fine. Additionally, the bill prohibits a person from engaging in a sexual act with a minor who is at least 12 but under 16 years of age if the offender is at least 4 years older than the minor.

Finally, H.R. 596 prohibits abusive sexual contacts as defined in the bill and as distinguished from sexual acts.

We have only three minor concerns for which we offer recommendations. These involve the affirmative defense to sexual abuse of a minor, the technical and conforming amendments included in the bill, and the defendant's knowledge as to the age of the victim in the two offenses relating to minors.

With respect to the affirmative defense, our comments on H.R. 4876 recommended that the bill include an appropriate defense to the crime of sexual abuse of a minor between the ages of 12 and 16 regarding the defendant's belief as to the victim's age. In response

to this suggestion, H.R. 596 provides for an affirmative defense in which the defendant must establish by a preponderance of the evidence the defendant reasonably believed that the minor had attained the age of 16.

However, we suggested, with regard to 4876, that the defense should not be available in all cases. It should be clear that it should be limited to cases in which the defendant's course of conduct did not also constitute an offense under 2251, sexual exploitation of children, 2423, interstate transportation of minors for prostitution or commercially exploitable sexual conduct, or, 1952, the Travel Act, but only to the extent that this last provision is violated with respect to prostitution activities.

This limitation is designed to prevent the person from commercially exploiting teenage victims by developing false documentary evidence indicating the victim's age to be 16 or older. Adding this limitation in our view would strike a balance between the need to excuse a reasonable mistake as to age and the need to avoid creating a loophole for persons who commercially exploit children through sexual activities.

Conforming amendments. The next area in which we believe the bill could be improved was originally added in the report version of H.R. 4876. This amendment, in our view, should be modified to take into account the change effected by the Comprehensive Crime Control Act, so that the appropriate sexual offenses as defined in the bill become the subject of the Major Crimes Act. This is particularly important with respect to involuntary sodomy.

Finally, the defendant's knowledge as to the age of the victim. We believe that under H.R. 596 it may be held that the government would have to prove beyond a reasonable doubt that the defendant knew the age of the victim with regard to the two offenses relating to minors. Proposed 18 U.S.C. 2241(c), protecting children under 12 from sexual activity and proposed section 2243(a), protecting children at least 12 but under 16 years of age.

To avoid this result we recommend that the bill be amended to state that the knowledge requirement of these provisions does not apply to the age of the victim, and, thus, the defendant's knowledge regarding the minor's age does not constitute an element of the offense that the government has the burden of proving.

Because of the serious nature of these offenses, there should be strict liability as to the victim's age, except to the extent that a defendant can successfully assert the proposed affirmative defense under section 2243, involving minors between 12 and 16 years of age. Offenses involving children under 12 years old are so serious, in our judgment, that mistake as to age should not be a defense of any kind.

H.R. 596 would create a rationally graded, comprehensive, sexneutral series of offenses in place of the inadequate laws now on the books. With the minor modifications we have suggested, we believe it would constitute a valuable revision and strengthening of the Federal sexual offense laws.

That concludes my summary, Mr. Chairman. I will be glad to answer any questions you may have.

Mr. CONYERS. Thank you for your suggestions for further improvement.

The gentleman from Pennsylvania, Mr. Gekas.

Mr. GEKAS. Only one question: Are you implying that the present provisions as to the knowledge by the perpetrator should applyshould not be defense at all for children under 12 but between ages 12 and 16 that it could be?

Mr. RICHARD. What I fear is the way the knowledge requirement is currently set forth. It could give rise to the argument that the government would have to prove that the defendant knew that the victim was under 12. We are suggesting that that not be an element of the offense. I do not believe it is intended to be such, but I am suggesting it may be susceptible to that

Mr. GEKAS. But you're restricting strict liability to 12 and under. Mr. RICHARD. That is correct.

Mr. GEKAS. Or is it under 12? There's a difference. Is it 12 and under or under 12?

Mr. RICHARD. Under 12.

Mr. GEKAS. Under 12.

Mr. RICHARD. Under 12.

Mr. GEKAS. All right. That's a suggestion well taken. I propose to take a note on that and bring it up at markup or at some other meeting.

Thank you.

Mr. CONYERS. You're welcome. Mr. Coble.

Mr. COBLE. Mr. Chairman, I'll be very brief.

I have no problem with this bill; in fact, I've heard some discussion concerning the spousal defense. And, as I say, I'm not opposed to removing the spousal defense at all: if a husband rapes his wife, I think he should be appropriately punished for it.

Have you heard of anybody-or perhaps, Mr. Chairman, you or my colleague from Pennsylvania of any group that might have problems with this, any of these active pro-family groups might contend that this would be a governmental intermeddling into the families? Has that come to your attention?

Mr. CONYERS. There is the Association of Husbands United, who I think are really ticked off about this provision, and I would give them-I'd watch them very carefully. I think they're based in North Carolina, but▬▬

[Laughter].

Mr. COBLE. No, have you heard of any such groups?

Mr. RICHARD. No, I have not. Of course, I have heard, from time to time, arguments that in my judgment are not particularly persuasive.

Mr. COBLE. Nor are they to me.

Mr. RICHARD. But I have never heard of a concerted effort.

Mr. COBLE. I'll check back home, Mr. Chairman, and see what I can find out. [Laughter.]

Thank you, Mr. Chairman. Thank you.

Mr. RICHARD. Thank you.

Mr. CONYERS. Well, I want to thank you, sir, for your testimony. And you have made some suggestions that I'll take under advisement with our counsel.

Mr. RICHARD. Thank you, Mr. Chairman. [The statement of Mr. Richard follows:]

Department of Justice

STATEMENT

OF

MARK M. RICHARD

DEPUTY ASSISTANT ATTORNEY GENERAL

CRIMINAL DIVISION

BEFORE

THE

SUBCOMMITTEE ON CRIMINAL JUSTICE COMMITTEE ON THE JUDICIARY U.S. HOUSE OF REPRESENTATIVES

CONCERNING

H.R. 596

THE "SEXUAL ASSAULT ACT OF 1985"

ON

APRIL 29, 1985

- 1

Mr. Chairman and Members of the Subcommittee:

I appreciate the opportunity to present the views of the Department of Justice on H.R. 596, the "Sexual Assault Act of 1985". 1/ The Department of Justice strongly supports enactment of the bill, which would bring about needed reform of the current federal sexual offense laws. However, there are some minor modifications which we believe would improve the bill, and I shall explain them in more detail later in my statement.

H.R. 596 replaces the current rape and statutory rape laws in title 18 of the United States Code with a series of graded offenses. It substitutes more modern terms, such as aggravated sexual abuse and sexual abuse, for common law terms, such as rape and carnal knowledge, and includes a precise description of the conduct prohibited. H.R. 596 eliminates the spousal exception of current law, and it makes the federal provisions sex neutral.

The most serious offense under H.R. 596 is aggravated sexual abuse, which consists of knowingly causing another person to engage in a sexual act by force or threat of death, serious bodily injury, or kidnapping. The offense of aggravated sexual assault also includes several other types of conduct: (1) engaging in a sexual act with a person whom the offender renders unconscious; (2) engaging in a sexual act with a person whose ability to appraise or control conduct has been impaired by the administration of a drug, intoxicant, or other similar substance by the offender without the victim's consent; and (3) engaging in a sexual act with a person under twelve years of age. Under H.R. 596 aggravated sexual abuse and the attempt to commit this offense would be punishable by a maximum of life imprisonment and a $250,000 fine.

The second most serious offense under the bill is sexual abuse. This crime is defined as: (1) knowingly causing another person to engage in a sexual act through threat or fear (other than threat or fear that any person will be subjected to death, serious bodily injury, or kidnapping); or (2) knowingly engaging in a sexual act with a person who is incapable of appraising the nature of the conduct or physically incapable of declining participation in it. This offense and the attempt to commit it would be punishable under the bill by a maximum of twenty years' imprisonment and a $250,000 fine.

Additionally, the bill prohibits a person from engaging in a sexual act with a minor who is at least twelve but under sixteen years of age if the offender is at least four years older than the minor. It proscribes engaging in a sexual act with a person

1/ A title more in keeping with the language of the bill itself would be the "Sexual Abuse Act of 1986."