MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      February 4, 1993

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:06 a.m., Thursday, February 4, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

 

      Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association

      Mr. Kevin M. Kelly, Attorney at Law

      Ms. Eve M. King, Nevada Commission on Judicial Discipline

      Ms. Tammi M. Morrison, President & Founder, Carson City        Alliance for the Mentally Ill, Inc. and Sexual Abuse

            Victims Enlightenment

      Ms. Brooke Nielsen, Assistant Attorney General

      Ms. Linda Oetken, Sexual Abuse Victims Enlightenment

      Ms. Sondra Painter, Sexual Abuse Victims Enlightenment

      Terry Rhoades, PhD, Psychologist, Sexual Abuse Victims          Enlightenment

      Ms. Victoria D. Riley, Nevada Trial Lawyers Association

      Mr. Steve Sexton, W.C. Public Defender's Office

      Ms. Heather Shaffer, Intern

      Mr. Guy Shipler, Nevada Commission on Judicial Discipline

      Justice Cliff Young, Nevada Commission on Judicial       Discipline

 

      (See Exhibit B attached)

 

Following roll call, Chairman Sader opened the hearing on A.J.R. 21 of the 66th Session. 

 

ASSEMBLY JOINT RESOLUTION NO. 21 OF THE 66TH SESSION

 

      Proposes to amend Nevada constitution to extend jurisdiction of commission on judicial discipline.

 

Mr. Guy Shipler, Chairman of the Commission on Judicial Discipline, introduced Justice Cliff Young, also a member of the commission, and Ms. Brooke Nielsen, Assistant Attorney General, serving as attorney for the commission.

 

Justice Young expressed the desire to clarify, with regard to jurisdiction, that justices of the peace are included, as well as municipal judges.  The commission has been acting as if they were, and it has proven satisfactory; however, the commission felt it would be better to bolster up the constitutional provisions.  Secondly, under the existing law, the discipline it could administer was fairly limited.   The commission can only remove, censor and retire.  Allowing the Supreme Court to make rules where monetary sanctions could be imposed would allow the system to be more efficient.  The third provision indicates certain justices of the peace and municipal judges cannot sit when some of their colleagues are under consideration.  They felt it is a meritorious bill.

 

Chairman Sader pointed out that this bill was passed in the previous session and is up for the second time.  If it passes both houses of the legislature this time, it will go on the ballot in the 1994 election.  Mr. Sader stated the Judicial Discipline Commission has a specific task and a rather narrow focus, and he asked Mr. Shipler to elaborate on the duties.

 

Mr. Shipler explained the purpose is two-fold.  He felt the name "judicial discipline" implies the commission merely oversees the punishment of judges.  That is not the purpose.  He preferred to have it called "judicial conduct" or "judicial performance".   Mr. Shipler was of the opinion the purpose has been to partly protect the judiciary from unjust accusations being published without any defense.  Mr. Shipler felt many of the complaints received by the commission were from people who had lost cases, stating the judge was unfair.  The commission has found, in the course of the legitimate complaints, many cases did not qualify to be pursued to the ultimate end of either censure or removal from the court; the commission can only do the three things Justice Young outlined.  He pointed out there is a feeling now there should be a way to reprimand judges if they are on the verge of violating a canon or appear to be, or are giving the appearance of getting out of line in terms of the canon.  It was Mr. Shipler's opinion this bill would give the commission greater leeway to discipline judges without ruining their reputations or their jobs.

 

Mr. Sader requested Mr. Shipler to provide a few common examples of allegations of judicial misconduct which, if true, would be actionable by the commission. 

 

Mr. Shipler replied if it appeared the judge seemed to be very rude or biased or had insulted the person complaining, the commission would pursue the matter.  The commission would like to be able to do something else other than censure the person.  There should be some discipline.

 

Chairman Sader asked if some other instances would include dishonesty of the judge, chronic tardiness, sleeping on the bench, and other actions relating to the judge's performance.

 

Mr. Shipler confirmed it would be a matter of the judge's performance.

 

Ms. Nielsen confirmed Mr. Shipler's comments.  The commission has seen many cases which really do not rise to the level of public censure or removal of the judge, and yet there has been some rudeness or lack of what is seen as appropriate judicial temperament.  Under the current provision of the constitution, the only discipline it could impose would be a public censure.  Ms. Nielsen felt a little more discretion, as provided under this change to the constitution, would give the commission a lot more authority and the needed discretion. 

 

Chairman Sader explained this bill would expand the jurisdiction of the commission to include justice court judges and municipal court judges and would add additional forms of discipline such as monetary fines, and would make additional provisions as to who could sit on a commission at the time certain types of judges were under consideration.  Obviously, a supreme court justice should not have a colleague of the supreme court sitting on the commission in that instance or a district court judge should not have a colleague from the same district court. In fact, potential conflict would be averted by this bill.

 

Ms. Nielsen agreed and added the form of discipline would have to be approved by the Nevada Supreme Court which establishes the rules under which the commission operates.

 

Mr. Toomin asked if these provisions had been enacted, would the case of Judge Wolfe in Las Vegas have come before the commission.

 

Mr. Shipler stated he really did not know how to answer the question.  "We work under very strict rules of confidentiality. We do a lot of things that I wish we would get credit for that nobody knows about.  All I can tell you is that Judge Wolfe resigned from his job."

 

Mr. Toomin pointed out his concern was, "***Judge Wolfe caused quite a bit of embarrassment to many citizens, particularly those who voted for him, and there was quite some period of time elapsed before something had taken place whereby he excused himself.  I just wonder if the case would have come before you in a timely manner and been handled as such."

 

Ms. Nielsen stated the allegations that were reported in the press were the types of things the commission would hear if a complaint were brought to the commission.

 

There being no further testimony on A.J.R. 21, Chairman Sader closed the hearing and opened hearing on A.J.R. 22 of the 66th Session.

 

ASSEMBLY JOINT RESOLUTION NO. 22 OF THE 66TH SESSION -

 

      Proposes to amend Nevada constitution to allow increase in salary of justice of supreme court and district judge during term.

 

There being no testimony, the Chairman closed the hearing on A.J.R. 22.

 

Chairman Sader opened the hearing on AB 142.

 

 

 

 

 

ASSEMBLY BILL NO. 142 -

 

      Expands circumstances under which recording or interception of wire or oral communications is permissible.

 

Chairman Sader called on Ms. Tammi Morrison, President of the Carson City Alliance for the Mentally Ill, Inc.  Ms. Morrison stated at the time of establishing their organization in town, Sexual Abuse Victims Enlightenment, they came across several instances where the laws were not there to protect the children and many cases should have come before courts and did not.    (See Exhibit C)

 

Ms. Linda Oetken introduced herself to the committee and announced that she is a survivor of sexual abuse as a child.  She stated she is now 45 and has only been able to admit in the last few years this happened to her.  The first abuse occurred as a very young child but was repeated until she was a young teenager.  She told the committee she has been involved in ongoing therapy since she was 16 and pointed out she had no idea until the last few years how much the abuse had impacted her.  In recovery, she stated she has become a child advocate; and maintains that the shame and blame one carries through the years does not have to impact one's life as much as it does.

 

Chairman Sader thanked Ms. Oetken for her participation in the hearing and pointed out he felt that all understood and acknowledged the seriousness of the crime, pain and terrible consequences to the victims of child sexual abuse.  The issue before the committee, he pointed out, is whether the bill is good public policy.

 

Ms. Morrison said when the committee has heard her own story, she felt the committee would realize why it would be such a great asset to allow this bill to pass. Ms. Morrison further stated the fact the confession of her father to this sexual abuse was captured by wiretap allowed her the validation she needed as a child to realize it was not her fault; and it allowed her to take him into court, prosecute him and be awarded a settlement.  Although Ms. Morrison stated she would never receive this settlement, she has received a closure in the matter.  (Refer to Exhibit C)

 

There being no questions from the committee, Ms. Morrison asked permission of the chairman to introduce Terrance W. Rhoades, PhD, a Nevada-licensed psychologist.

 

Dr. Rhoades explained to the committee he has been active in both Carson City and Reno in helping victims of child sexual abuse and has heard judges in the courts voice real frustration with the severe lack of hard evidence to do anything about these cases.  He stated he realized it was a serious matter when something is done to invade a person's privacy.  The consequence of child sexual abuse could lead to a complex post-traumatic stress disorder, which really shatters someone's life, versus a more simple disorder which could be treated and ameliorated. Dr. Rhoades stated when children were brought to him, he evaluated what had happened and provided evidence, but by the time he saw the child, the child had already talked with parents, police, and with welfare workers who were evaluating the sexual abuse, and the child went "underground."  Sometimes it takes years of therapy before their cognition can mature to be able to put it in a format that they can verbalize.  In a recent case, Dr. Rhoades informed the commission, they had on video tape a very discreet description of what had happened in the sexual abuse, yet it was not enough to be used in court.  The judge stated he needed more evidence.  Dr. Rhoades emphasized this bill should be passed, even though it would involve an invasion of privacy.  He went on to stress it should be strictly defined so that it would be limited and discreet. 

 

Chairman Sader asked for further testimony in favor of A.B 142. There being none, he requested testimony in opposition to the bill.

 

Kevin M. Kelly, appearing on behalf of the Nevada Trial Lawyers Association and the Nevada Attorneys for Criminal Justice,  advised the committee every time someone opposed this type of bill, somehow it might be interpreted as favoring, condoning or mitigating child abuse or child sexual assault.  Mr. Kelly stressed his group was trying to present information for the committee's consideration which might go into a balancing test of whether the bill would deter, detect, and investigate child abuse.  Mr. Kelly pointed out there were a number of protections that are statute already. "NRS 179, as is, is more than sufficient to allow for immediate intercept based on probable cause."  He stated, "This statute would require a police officer and an attorney for the D.A.'s office or the attorney general to come forward before a district court judge or a justice of the supreme court with probable cause.  In the bill, Section 4. has a very minimal standard of reasonable suspicion, which, as an attorney practicing criminal law, I cannot articulate with any degree of specificity exactly what is meant by 'reasonable suspicion'."  

 

Mr. Kelly revealed another concern.  He had sat on the bench in Las Vegas for about three years doing child support, paternity and civil commitment proceedings.  One of the most frequent allegations made was sexual assault by the mother or the father against one of the spouses in a civil divorce proceeding.  He voiced fear this bill would allow all kinds of discriminatory applications, because in a divorce proceeding the mother or the father alleged the other spouse was committing abuse which would constitute permission, pursuant to the new bill, to allow a wiretap.  Mr. Kelly then pointed out this would lead to all kinds of information potentially coming into a divorce proceeding, because of a legal wiretap.  He did not think this appropriate for civil, domestic matters.  Mr. Kelly reiterated he felt the bill, as drafted, would have limited potential evidentiary value.  He also stated he felt the potential for entrapment would be very high.  The child who was disciplined by daddy for some reason or another and was grounded, would be well aware of the ramifications of an allegation of sexual abuse.  Children learn very early how to make a statement and know only full well the ramifications of that statement.  He requested the committee to reject the bill as drafted.

 

Mr. Toomin mentioned that something that concerned him greatly was the constitutionality regarding one-sided wiretapping.  He requested an explanation from Mr. Kelly.

 

Mr. Kelly responded if the committee passed the bill and it became law, he felt it would meet the constitutional muster. 

 

Chairman Sader pointed out this bill was sometimes described as a "one-party consent" and sometimes described as "wiretap," and both labels were misleading.  Mr. Sader clarified the bill would only allow interception by a law enforcement officer, with consent of at least one of the parties.  The officer could listen in or record it, not necessarily by a wiretap on the line.  He pointed out that allowing of recording one end of a telephone conversation, without permission of the other party, is one-party consent in its true form.  This bill is in between because it allows the interception of a wire communication by a law enforcement officer with the consent of at least one of the parties.

 

Mr. Scherer asked Mr. Kelly if changing the wording of the bill to "probable cause" from "reasonable suspicion," would make him feel somewhat more comfortable.  Mr. Kelly stated that would be a good direction, but he still felt his other concerns would be valid, especially when considering a domestic issue.  

 

Mr. Scherer asked, "What if we also prohibited the use of the recording in any situation other than a criminal proceeding for violation of these particular crimes listed in this bill?"

     

Mr. Kelly replied, "We're getting better."

 

Mr. Scherer asked Mr. Kelly if he was aware of any court in the country that has held that a statute like this violates the Fifth Amendment.  Mr. Kelly stated he was not.

 

Mr. Carpenter requested Mr. Kelly elaborate on the ways these matters could be taken into court and what the effect might be. Mr. Kelly stated the present statute, NRS 179.410, allows for the intercept, and that statute could possibly be amended to include allegations of sexual assault or sexual abuse on children.  Mr. Kelly felt NRS 179.460 might be an appropriate area to amend by adding child sexual abuse. 

 

Ms. Smith, as a teacher, expressed her concerns with the bill as follows:  First, if a report of suspected child abuse is made to a principal or counselor, that child does not go home that night and a protective service is called and an investigation is begun.  Secondly, calling the abuser would not necessarily guarantee he would confess, and this law might make a person less likely to say anything.  Thirdly, some children know the system far better than anyone in attendance, and these children might manipulate situations and abuse the system.

 

Chairman Sader called for any further testimony.  He reported Mr. Porter had some information coming from Las Vegas he would like to submit for the record. A short recess was called.

 

Mr. Sader reported that during the recess, there was a request to respond to those who were not in favor of A.B. 142 and called Ms. Morrison to the witness stand.

 

Ms. Morrison requested the opportunity to comment on some of the things she had heard from Mr. Kelly and to some of the questions the committee members were addressing to Mr. Kelly.  She wished, first of all, to make the committee aware of the statistics involved with child sexual abuse.  One in three girls was abused before the age of 18; one in seven boys was abused before the age of 18.  Ms. Morrison went on to address Mr. Kelly's statement about the divorce case where, in fighting for custody, one parent would say the other parent abused the child.  It was Ms. Morrison's opinion if a phone recorder was used to obtain this confession or facts between the victim and the offender, that would erase a lot of the doubt.  As far as entrapment, it was Ms. Morrison's belief, as Ms. Smith had stated, many children know the system and know the way it works.  All they had to do was pick up the telephone and say they were being abused.  If phone recording was allowed, Ms. Morrison felt it would cut down the increased time of investigations.  With reference to Ms. Smith's statement that if an abuse was reported to the school, that child is removed from the home,  Ms. Morrison reported it has been her experience with 34 percent of her clientele the offender was suspicious because the child was gone, so an investigation must take place.

 

Chairman Sader asked Ms. Morrison instead of passing A.B. 142 what she would think of making this an enumerated offense in Chapter 179.  Wiretaps would be available but only with a court order first, not after. 

 

Ms. Morrison stated she really had not considered that idea.  Ms. Morrison said she thought Mr. Kelly stated there was such a law at this point.

 

Chairman Sader pointed out the law only applies to certain, enumerated offenses: murder, robbery, arson, etc., not to child sexual abuse.

 

Ms. Morrison stressed the fact she would like it to be written so it can be interpreted correctly by all the district attorneys.  She stated she has found each county has interpreted the statutes in its own way.

 

Mr. Carpenter wanted to know what made Ms. Morrison think the person creating the offense would talk to the child over the phone about what was going on.  Ms. Morrison responded it was because of her own personal experience.  She stated she had also had other clients whose abusers had confessed over the phone.  She pointed out offenders were more apt to confess over the phone, thinking they were not under suspicion, than when called in for questioning.   Ms. Morrison cited an example used previously, in her own case, where the offender had made a phone confession, he was brought into the police department and immediately denied it until the phone recording was played and he knew he was caught.

 

Mr. Anderson stated he really wanted to make certain he understood the recording would only take place in the presence of a law enforcement officer. Ms. Morrison stated that was correct, only in the presence of law enforcement.

 

Mr. Anderson wanted to know if the committee agreed with the enumerated expanding of the language of sexual offenses against a child, would the language of Section 2 be retained.  Chairman Sader confirmed the term "sexual offenses of child" would have to be defined for purposes of inclusion in NRS 179.

 

Mr. Regan asked Ms. Morrison if she felt A.B. 142 would be a valuable tool during ongoing investigation or more from an historic situation.  Ms. Morrison answered she felt this would be a great asset in investigations that were just beginning.

 

Mr. Regan asked in the case of Ms. Oetken where incidents transpired two or three decades before, how that affect the investigation now.  Ms. Morrison replied that situation is included in A.B. 53.  She said it is the intention of her group to extend the statute of limitations so that people would be able to go to civil litigation at this point.

 

Chairman Sader closed hearing on A.B. 142 and opened the hearing on A.B. 53.

 

ASSEMBLY BILL NO. 53 - 

     

      Increases penalties and time for prosecution of certain sexual offenses.

 

Ms. Tammi Morrison lead the testimony and explained A.B. 53 was requested by her for several different reasons.  She stated she would like to go through each of the five sections of the bill.  (Refer to Exhibit D)  Ms. Morrison introduced Dr. Terrance Rhoades, PhD, Nevada-licensed psychologist.

 

Dr. Rhoades told the committee he would like to explain the kind of post-traumatic stress the victims of sexual abuse have and why the repression often sticks throughout their whole lives.  One image he wished to convey was if one went into a store like Circuit City, one would see a poster of a man sitting in a chair, with two giant speakers in front of him. "There is a cocktail glass that is tipped up from the force of the sound, and his hair is going back.  It appears the man is enjoying the experience."  If the signal were to be amplified more and more, Dr. Rhoades explained at some point he would not be enjoying the sound anymore.  At that point, there is a breach in the nervous system against over-stimulation.  To reflect how these people's lives really are shattered in their ability to be intimate with people, even the ability of their nervous system to process their lives in a daily way, Dr. Rhoades pointed out with these people sometimes going to the store is a major endeavor which they would avoid going before 11:00 at night when there were fewer people.  In terms of repression, Dr. Rhoades stated he has been in groups where Viet Nam combat veterans were in the same group with survivors of ongoing childhood sexual abuse.  He reported war survivors and sexual abuse survivors both have the same shattering to their nervous systems.  Dr. Rhoades went on to explain an incident regarding a veteran who had no recall of bad experiences in Viet Nam and just remembered a pleasant experience of playing with children by a river.  There was no way the veteran could recall the bad memories which is the nature of repression.  Two years later, when he returned, he started acting out, drinking, doing wild things, abused his wife, etc.  Dr. Rhoades tried to convey the intensity of this and the reasons why the memories were not even allowed to come to consciousness.

 

Ms. Morrison continued with Section 4 (Refer to Exhibit D).  The state of Alaska went to a 10-year statute in 1990, the state of California currently has an 8-year statute of limitations for criminal prosecution, the state of Wyoming has a 10-year statute of limitations for criminal prosecution.  Increasing the statute, Ms. Morrison explained, would allow the child to grow old enough to make it through a court hearing.  Ms. Morrison stated she was requesting the criminal statute of limitations be increased to 10 years in Nevada. 

 

Ms. Morrison pointed out a part of Section 5 was not worded as she had intended.  She wanted line 43 to read, "Within 10 years after the victim of sexual abuse is 21 years old," rather than, "Up until the victim is 21 years of age."  The purpose for that is repressed memories.  She went on to explain that by the time the victim discovers what has happened to her, she is usually in therapy for something else.  When she goes into therapy for something else and discovers this abuse, the statute of limitations has already run out.  The current statute is interpreted in many different ways by district attorneys throughout the state.  Ms. Morrison reported it was her understanding that the original secret offense statute of limitations was four years after the age of 21.  Two counties, according to her, were not accepting that, and one cost the life of a survivor. "She was nine days from turning 21, the district attorney would not take it, and she committed suicide."  Ms. Morrison reported the victim had only had her memories for two months prior to reaching 21 years of age.  The witness stated extending the statute of limitations to 10 years would give survivors or victims to the age of 31, if they had never recorded their abuses before.  Ms. Morrison requested the statute of limitations be made retroactive for 10 years.

 

Mr. Bonaventura asked if in NRS 207.260 "annoying a minor" would be construed as a felony.  Chairman Sader confirmed that it would.

 

Ms. Morrison admitted that she did not know Nevada's definition of the word "annoy."  She was more intent on "molest" rather than "annoy."  If the definition was not along those lines, she stated she would certainly be willing to request that "annoys" be omitted. 

 

Chairman Sader called for further testimony in favor of A.B. 53.  There was none.  He then called for testimony in opposition to the bill.

 

Mr. Kelly observed Nevada has very excellent statutes to protect minors.  It was his opinion Section 1 of A.B. 53 attempted to protect children between the ages of 14 to 18 only.  He pointed out NRS 201.230 is a 1-10 year felony plus a $10,000 fine involving lewdness with a minor under 14 years of age.  NRS 203.364 deals with statutory sexual seduction, defining that as being a person 18 years or older having sex of any type with a person under 18.  The penalty for a person 21 years or older, is a felony 1-10 years and a $10,000 fine; for a 17 year old molesting or having sexual intercourse with a 15 year old, it is a gross misdemeanor.  It was Mr. Kelly's opinion changing to a felony for the 14 to 18 year old, when there were other sections on the books that would protect them, would not be justified or warranted.  He stated he felt there might be a fiscal impact, although indicated there was none indicated.  The reason, he stated, was at the present time a gross misdemeanor would allow plea negotiations to be an essential element of the criminal justice system.  Without it, he pointed out, cases would not be able to progress, and civil cases would never be heard.  If a person was charged with an offense, he would negotiate with the district attorney.  Mr. Kelly stated 99 percent of the time, there was mandatory counseling as it is required by statute.  A person could not receive probation unless he had a certificate from a psychologist or a psychiatrist indicating he was not a menace to the community.

 

Chairman Sader restated the statutes:  Currently, in the State of Nevada, if any person engages in open and gross lewdness with a child under the age of 14, that is a felony.  Mr. Sader requested that Mr. Kelly restate NRS 200.364.

 

Mr. Kelly stated NRS 200.364 deals with statutory sexual seduction.  Paragraph (a) deals with sex by a person 18 years or older with someone under 16.

 

Chairman Sader asked for the definition of sexual seduction.  Mr. Kelly replied, "Any type of penetration committed by a person 18 years of age or older with a person under the age of 16 years."

 

Chairman Sader asked what happened between 16 and 18.  Mr. Kelly responded he thought the sexual assault statute in general would apply, which is life in prison.

 

Mr. Kelly stated Section 2. referred to horrendous offenses, but Nevada has a great deal of statutes on the books.  If someone was arrested for molesting a child, he was going to be severely punished in one of two fashions, either he would receive  treatment or he would go to prison.  Mr. Kelly went on to explain he did not think changing NRS 207.260, which involves annoyance or molestation, by deleting the first offense misdemeanor and making it a felony accomplished that. 

 

Chairman Sader requested Mr. Kelly to define the term "annoy."

Mr. Kelly reported as he understood it, "annoy" is constant or repeated actions to interfere with or disturb, or being where one is not supposed to be. 

 

Chairman Sader pointed out everyone has a lay connotation of "annoy."  He said he could be annoyed at his child, or his child could be annoyed with him because he turns off the TV.  He asked Mr. Kelly what constitutes molestation.  Mr. Kelly said he thought any type of touching would constitute molestation.

 

Mr. Graham stated, in regard to the term "annoy," he thought of annoy as a lesser-included offense, as something that was committed on the way to committing a higher offense.  He said he would assume by the time somebody was molested, he would have been annoyed.

 

Chairman Sader insisted there must be some way to describe what contact would constitute annoyance.  If a parent disciplined a child in some unphysical and unobtrusive way which made a child angry, a lay person would say the child was annoyed. He wondered where one drew the line.

 

Mr. Kelly stated, based on the stalking bill, there was some language that might assist Mr. Sader in answering that question.  If it was the reason a person felt frightened, intimidated, threatened or harassed, maybe they would consider that to be annoyance.  Since it was not defined to his knowledge, maybe those would be some helpful, key words.

 

Mr. Graham said he felt the proponents of the bill did not intend for "annoy" to be elevated to a higher classification of crimes.  He stated the cases where he has seen annoying charged resulted from a negotiated plea.  He did not remember ever seeing anyone originally charged with annoying a minor.

 

Chairman Sader questioned Mr. Graham on his definition of "molest."

 

Mr. Graham stated he felt "molestation" would involve some type of touching, although it might not be to a degree of a sexual assault.  It could be considered unprivileged touching, perhaps even a battery, but not elevated to a regular criminal battery.

 

Chairman Sader asked Mr. Graham if one touches, fondles, handles

a child's private parts, then that is lewdness. "So molestation, if it has any meaning, must mean something other than lewdness.  Does that mean touching other parts other than private parts?"

 

Mr. Kelly said when he first thought of molestation, he thought  of some touching of the private areas.  Mr. Kelly went on to say that obviously, if a child was touched in the face, it would not be molestation but it might be battery, which was already on the books with laws protecting against it.

 

Mr. Graham stated the first thing he would do would be to look in the annotations under this section and see if there is any case law.  He said he really could not add anything.

 

Mr. Kelly told the committee his final comment was on Section 2 of A.B. 53 and he felt probationable offenses appropriate in the overall scheme of things.  Regarding Section 3 and Dr. Rhoades' comments concerning the post-stress disorder syndrome, Mr. Kelly stated he did not have any call with that.  He stated as he read Section 3, it totally eliminated any statute of limitations;  Section 4 was the criminal statute of limitations.  Mr. Kelly reported the problem he had with Section 4 was in a criminal context, there are more significant problems involved.  The one that came to mind was the inability of the defendant to mount any type of reasonable defense.  A person charged with an offense has a right to present a defense, according to Mr. Kelly, but when a statute of limitations goes back 10 years, and the child alleges that during the summer of 1982 "daddy molested me," it might take everyone some moments to think where he was in 1982, let alone try to put together a defense to counteract these things.  The statute of limitations problem, in a criminal context, is far different than in a civil context.  The ability to obtain witnesses could be a problem.  Records may or may not be still in existence.  Today, child abuse is talked about, spoken about on the front page of today's paper, talked about in schools, on TV, and people have a far greater sense of it.  Mr. Kelly stated he did not feel it was necessary to extend the statute of limitations to 10 years as it would be very difficult to defend.  Mr. Kelly, on the matter of Section 5, stated he was unsure of what Ms. Morrison had asked for on this section.

 

Chairman Sader stated, as he understood it, Ms. Morrison wanted retroactive application of the statute of limitations in civil cases.

 

Mr. Kelly said it appeared that A.B. 53 would allow 10 years to file after the commitment of the offense, or 21, whichever occurred later.  Under NRS 171.095, which deals with the secret offense, the supreme court has defined lewdness with a minor as a secret offense.  Walstrom v. State, 104 Nev. 51, 752 P.2d 225 (1988).  Mr. Kelly went on to say there is no question that lewdness and sexual assault on children would pass the muster of a secret offense.  What NRS 171.095 means is the clock stops during the period of suppression.  Once the child receives treatment, once the child is in some therapeutic sessions, the clock then starts ticking, and the four-year statute is then applicable.  Mr. Kelly did not see the need to extend the time period of 10 years or until the child is 21. 

 

Mr. Anderson asked Dr. Rhoades what percentage of pedophiles were treatable.  Dr. Rhoades admitted he would have to look up those numbers, however he stated they are getting better at being able to treat pedophiles and knowing how to identify and catch them earlier.

 

Mr. Anderson reported he had heard a speaker on the subject of pedophiles several years ago.  It seemed it was a very insignificant percentage of people in this category who were truly treatable, less than 30 percent in reality. 

 

Dr. Rhoades agreed and advised if these people could be reached earlier, then the percentage would increase.

 

Mr. Anderson asked if Dr. Rhoades saw A.B. 53 as having an ability to treat those kinds of offenders, or would it be harmful to bring those people forward to be identified.

 

Dr. Rhoades advised extending the statute of limitations could have the effect of bringing some perpetrators back into the treatment system.  He said he could understand concerns about the earlier sections, where if the felony is invoked too soon in a prison sentence, without treatment, then there could be a problem of penalizing some people who might be treatable.

 

Mr. Kelly reminded the committee the Walstrom decision dealt with lewdness, and it only makes sense that the district court would extend it to any sexual assault involving a minor where it was shown that the child suppressed that. 

 

Mr. Graham asked if that was from a civil standpoint.  Mr. Kelly stated that it was in the case of Walstrom v. State.

In the supreme court in 1988, Walstrom v. State held that lewdness with a minor was a secret offense, holding the statute until such time as the victim regained her ability to recount her experiences.

 

Mr. Scherer asked Mr. Graham if he was familiar with that at all.  Mr. Graham stated he was just vaguely familiar, but he felt if it did hold for lewdness with a minor, there was not any reason to believe it would not apply to sexual assault also, not in a forced sexual assault but in an abuser situation.

 

Mr. Scherer asked Mr. Kelly if there was an outside limitation placed by the court.  Mr. Kelly stated he had no recollection of an outside limitation.  NRS 171.095 stops the clock until the person begins to recount the experiences.  There is no limitation.

 

Mr. Scherer directed the next question to Mr. Graham.  He stated a constituent found herself in this situation and complained she could not get any cooperation from the district attorney's office in prosecuting this because she was being told that the statute of limitations has run out, even though she did not begin to recall these experiences or discuss these experiences until recently.  He wondered if there was a difference in interpretation that was causing the people in the district attorney's office to tell her she could not pursue that.

 

Mr. Graham responded he was not aware of the specific case to which Mr. Scherer referred.  Frequently, he stated, these situations are reported or recalled earlier, at least to some extent.  Then, over a period of time, the person becomes willing to prosecute and desires to prosecute.  By the time the person is ready to prosecute, the tolling of the statutes is overcome. 

Mr. Toomin reported he would be interested in obtaining information on similar laws in other states.  Mr. Sader advised the Legislative Counsel Bureau has the information.

 

Mr. Steve Sexton, an attorney practicing criminal law in Washoe County with the public defender's office, introduced himself.  He said he mainly wanted to voice his objection to amending NRS 207.260 to a felony, because he felt there were some problems with it even as a misdemeanor.

 

Ms. Morrison announced she would like to clarify "secret offense" and stated, "In dealing with the district attorneys in the various counties, the problems with the wording, 'secret offense' are you have four years from the age of 21, if you have never reported your abuse to anyone.  The district attorneys I have spoken with are in disagreement with what Mr. Kelly is saying.  Once a child reports his or her abuse, they no longer qualify under the secret offense statute.  Because they no longer qualify, the normal statute of limitations takes effect.  This is the way it is being administered through the district attorneys' offices that I have talked with."  She reminded the committee that once a person reported the abuse to anyone, that person no longer qualified under the secret offense statute of limitations.  It takes longer than four years for someone who is just beginning to remember to start dealing with what is happening.  Ms. Morrison repeated by increasing the statute of limitations to l0 years under the secret offense statute, a person reporting the abuse now has l0 years to deal with it before he prosecutes.

 

There being no further testimony, Chairman Sader declared the hearing closed on A.B. 53.

 

A.B. 142 (ADDITIONAL TESTIMONY)

 

Mr. Porter distributed a portion of a 400-page affidavit filed on a murder case in Las Vegas which dealt with a court-authorized wiretap.  The conversations were between his law partner and his client and were placed into the affidavit to support the arrest warrant.  Every time the client would call the office and have a conversation with his lawyer, the conversation was recorded per a court-ordered wiretap and put into the affidavit.  He stated this was somewhat shocking to him because they did not find out about the existence of the tap or the existence of the court order until they surrendered the client pursuant to the arrest warrant.  Mr. Porter admitted it was quite sobering to read unremembered conversations in an affidavit, especially when they pertained to attorney/client relationships. If the committee was going to allow the recording of telephone conversations, Mr. Porter suggested a lot of thought be given to what happens as far as listening to conversations, as none of the people knew they were being recorded.  He stated he just wanted the committee to be aware there is a wiretap statute which he feels ha beens severely abused on a number of occasions. (Refer to Exhibits E, F & G)

 

 

      ASSEMBLYMAN PORTER MOVED TO DO PASS AJR 21 OF THE 66TH SESSION

 

      ASSEMBLYMAN ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

       ***************

 

Chairman Sader held AJR 22 of the 66th Session due to lack of testimony and said the bill would be rescheduled at a later time.

 

Chairman Sader held without action A.B. 142 and A.B. 53 for further consideration in work session to be held on February 5, 1993.

     

A.B. 86 -

 

Chairman Sader reported an administrative matter to bring before the committee with regard to A.B. 86, which dealt with the ability to stop somebody who has murdered a person from inheriting the estate.  Mr. Sader reminded the committee the bill was passed as amended, to include the concept of just exactly what the administrator and guardians wanted.  It was brought to Mr. Sader's attention when he went down to get the bill amendment drafted, the committee had also dealt with this circumstance in two other instances, joint tenancy property and life insurance.  Chairman Sader requested the committee go back and reconsider its action whereby it amended and do passed A.B. 86, with the amendment only providing for a change in the estate inheritance scheme.  If that motion passed, then amendment #14 should be passed to apply to estates, joint tenancy and life insurance.

 

      MR. REGAN MOVED TO RECONSIDER THE ACTION TAKEN TO AMEND AND DO PASS A.B. 86.

 

      MR. ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

      ************

 

      MR. REGAN MOVED TO AMEND AND DO PASS A.B. 86 WITH AMENDMENT NO. 14.

 

      MR. ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (MR. PORTER AND MR. CARPENTER VOTED AGAINST.)

 

 

 

 

 

There being no further business to come before committee, the meeting was adjourned at 11:00 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      BARBARA D TONGE

      Committee Secretary

           

??

 

 

 

 

 

 

 

Assembly Committee on Judiciary

February 4, 1993

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