HB 628-FN – AS INTRODUCED
2011 SESSION
03/04
HOUSE BILL 628-FN
AN ACT making the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault.
SPONSORS: Rep. Lambert, Hills 27; Rep. Manuse, Rock 5; Rep. L. Jones, Straf 1; Rep. Itse, Rock 9; Rep. Sapareto, Rock 5
COMMITTEE: Children and Family Law
This bill makes the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault. This bill classifies persons convicted of the offense as tier III offenders under the criminal offenders registry.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11-0798
03/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT making the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subparagraph; Sexual Assault; Touching or Viewing by Government Security Agent. Amend RSA 632-A:4, I by inserting after subparagraph (c) the following new subparagraph:
(d) When the person, acting in his or her role as a security agent of the federal, state, or local government, touches the genitals or breasts of any other person or touches or views with any technological device the genitals or breasts of any other person without probable cause for such touching or viewing. For purposes of this subparagraph, the following shall not constitute probable cause: discussing or possessing a copy of the Constitution, discussing the security apparatus of an airport, being on the premises of an airport, possessing an airplane ticket or any other type of ticket for access to mass transportation, driving a motor vehicle on a public way, or ownership of firearms.
2 Registration of Criminal Offenders; Definitions; Sexual Offense. Amend RSA 651-B:1, V(a) to read as follows:
(a) Capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, I(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, 632-A:3; sexual assault, 632-A:4, I(a), RSA 632-A:4, I(d), or RSA 632-A:4, III; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; or a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I.
3 Registration of Criminal Offenders; Definitions; Offense Against a Child. Amend RSA 651-B:1, VII(a) to read as follows:
(a) Any of the following offenses, where the victim was under the age of 18 at the time of the offense: capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, 1(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, RSA 632-A:3; sexual assault, RSA 632-A:4, I(a), RSA 632-A:4, I(d), or RSA 632-A:4, III; kidnapping, RSA 633:1; criminal restraint, RSA 633:2; false imprisonment, RSA 633:3; incest, RSA 639:2; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I; indecent exposure and lewdness, RSA 645:1, II and RSA 645:1, III; or prostitution, RSA 645:2.
4 Registration of Criminal Offenders; Definitions; Tier III Offender. Amend RSA 651-B:1, X(a) to read as follows:
(a) RSA 630:1, I(e), RSA 630:1-a, I(b)(1), RSA 632-A:2, RSA 632-A:3, III, RSA 632-A:3, IV if the victim was under the age of 13, RSA 632-A:4, I(d), RSA 633:1; or RSA 639:2.
5 Effective Date. This act shall take effect 90 days after its passage.
LBAO
11-0798
Revised 02/14/11
HB 628 FISCAL NOTE
AN ACT making the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, Department of Corrections, New Hampshire Association of Counties, and New Hampshire Municipal Association state this bill may increase state, county, and local expenditures and revenue by an indeterminable amount in FY 2012 and each year thereafter. The Department of Safety states this bill may increase state restricted revenue and expenditures, and local expenditures and revenue by an indeterminable amount in FY 2012 and each year thereafter. There will be no fiscal impact on county revenue.
METHODOLOGY:
The Judicial Branch states this bill adds RSA 632-A:4, I(d) to provide that touching or viewing with a technological device a person’s breasts or genitals by a government security agent without probable cause is a misdemeanor sexual assault punishable as a class A misdemeanor. This bill will classify individuals convicted of this offense as tier III offenders under the criminal offenders registry. The Branch states this bill could result in an increase in costs to the Branch by adding the misdemeanor A. The Branch has no information to estimate how many cases will be brought but does have estimated costs for processing a misdemeanor A case and a complex civil case. The Branch states a misdemeanor A case costs $60.03 per case in FY 2012 and $60.88 per case in FY 2013 and each year thereafter. The possibility of appeals increases the likelihood the fiscal impact on the Branch will exceed $10,000.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is capped at $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states its public integrity unit investigates and prosecutes criminal conduct undertaken by certain officials in their official capacity. This bill will result in an increased number of investigations and/or prosecutions by the unit, increasing state expenditures by an indeterminable amount.
The Department of Safety states the sex offender registry collects a registration fee of $50.00 per year per offender to help defray the cost of registration. Of the $50.00 collected per registration, $40.00 is retained by the state police in the criminal records fund and $10.00 is sent to the local police department where the offender resides. The Department is not able to determine the extent that state restricted revenue and expenditures and local expenditures and revenue will increase as a result of this bill as it cannot determine the number of individuals that will be convicted of this offense.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2010 was $32,492. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2010 was $659. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be impacted.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained, prosecuted or incarcerated as a result of this bill. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000.
The New Hampshire Municipal Association states the fiscal impact of this bill on local expenditures and revenue is indeterminable. To the extent local police officers or corrections officers are considered government security officers, then significant litigation costs may be incurred by municipalities.