Thank you, Mister Speaker. Mister Speaker, if I know that although well intended, this bill has so many flaws and so many holes, it really should not be passed today.…
Speaker ShurtleffThat motion is in order. The question before the House is the motion to table HB 1601. A division has been requested. This will be a division vote. Members will kindly take their seats. The question before the House is the recommendation this bill should be tabled. This will be a division vote. The Chair recognizes Rep. DeSimone for a parliamentary inquiry.
Rep. Debra DeSimone (R - Rock 14)Thank you, Mister Speaker. Mister Speaker, if I know that although well intended, this bill has so many flaws and so many holes, it really should not be passed today. It should be totally rewritten and brought to us another day, then I would push the green button to support the tabling motion? Thank you.
Speaker ShurtleffThe question before the House is the motion to table HB 1601. The Chair recognizes Rep. Long for a parliamentary inquiry.
Rep. Patrick LongThank you, Mister Speaker. Mister Speaker, if I know that this bill closes loopholes. Sorry, on the tabling motion, and that the second committee is more versed in the policy on what the issues are, then would I vote no, red, on the tabling motion? Thank you, Mister Speaker.
Speaker ShurtleffThe question before the House is a motion to table HB 1601. This will be a division vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will be attentive to the state of the vote. With 147 members voting Yea and 206 voting Nay, the motion to table is defeated. The question now before the House is the motion of Ought to Pass as Amended. I mean Ought to Pass. The bill is on second reading. The Chair recognizes the member from Franklin, Rep. Horn, to introduced floor amendment (0691h).
Rep. Werner Horn (R - Merr 3)Thank you, Mister Speaker. HB 1601, 80% of it is fantastic and I stand behind every line of it. It involves sex with underage children. My amendment seeks to remove 20%, the remaining 20%, which deals with sex with consenting adults. The basis for this amendment is that it will tell our vulnerable community with disabilities that they can no longer consent to an intimate act with their partner. That's unacceptable to me. If you have dementia, if you have early onset Alzheimer, you are still capable of giving consent but the change in this law would send a message that we don't consider you to be able to do that. The scenario that I presented in the subcommittee dealt with somebody with early onset Alzheimer and dementia having a partner of 30 years, a husband or a wife. They begin the intimate act and in the course of this act, an episode manifests. In the first scenario, their partner stops because they respect and understand the basis for the act and they know that when you have an episode of onset dementia or Alzheimer, you are unable to withdraw consent, so you stop. In the second avenue, the partner recognizes this and does not stop and is committing a crime. A crime that they can be charged for and should be charged for except if we strike the marriage exemption in this law, then, even beginning the act is a crime, felonious sexual assault, because your partner who has onset, early onset Alzheimer or dementia wants to be intimate with their partner of multiple decades so therefore I respectfully ask that we strike the first paragraph of this bill which deals with sex between consenting adults. We can preserve the rest of the bill, which is a very excellent bill, that will ban sex with minors. Fantastic, regardless of marital situation, fantastic. But I ask for the adoption of the amendment and Mister Speaker, I ask for a division vote.
Speaker ShurtleffA roll call has been requested and we will take that up after a second member speaks. The Chair recognizes Rep. Long to speak in opposition to the adoption of the amendment.
Rep. Patrick LongThank you, Mister Speaker. Mister Speaker, this amendment deletes the first section. Children and Family Law's policy was the issue with aggravated sexual assault exemptions. If what the other speaker had just mentioned, it comes down to that, the policy for Children and Family Law do not agree that there should be an exemption, even with disabilities. Disability rights council had let us know that they don't have an issue with that. It's not going to reach the plateau that the other speaker spoke of and I would ask that you press the red button and defeat this amendment. Thank you.
Speaker ShurtleffThe question before the House is the adoption of floor amendment (0691h). A roll call was requested. Is that sufficiently seconded? It is not sufficiently seconded. This will be a division vote. Members will kindly take their seats. The question before the House is the motion that we adopt floor amendment (0691h). The Chair recognizes Rep. DeSimone for a parliamentary inquiry.
Rep. Debra DeSimone (R - Rock 14)Thank you, Mister Speaker. Mister Speaker, if I know that the amendment before us fixes one of the many problems that are in this bill, then I would vote green to pass this amendment? Thank you.
Speaker ShurtleffThe question before the House is the division vote to adopt amendment (0691h). The Chair recognizes Rep. Long for a parliamentary inquiry.
Rep. Patrick LongThank you, Mister Speaker. Mister Speaker, if I believe that the second committee is versed better on the policy that we are discussing here with any potential problem, then would I press the red button and vote down this amendment?
Speaker ShurtleffThe question before the House is the adoption of floor amendment (0691h). This will be a division vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will be attentive to the state of the vote. With 146 members voting Yea and 209 voting Nay, the adoption of the amendment fails. The question before the House is now the recommendation that the bill Ought to Pass. Why does the member rise?
Rep. Jack Flanagan (R - Hills 26)Thank you, Mister Chair, Mister Speaker, sorry. Is this bill divisible?
Speaker ShurtleffI was told this question might come up and well it's the power I have as Speaker, the ability to read people's minds and I will let it go at that. Anyway, in regard to the question of division, I would normally just rule no that it isn't, but I think you deserve a longer explanation. Your motion is very much in order and I had to struggle because of what your division would be, part one from the rest of the bill. I can see where on first blush it would be divisible, but looking at the bill in its totality, I see where part one does address issues in part two so the two parts belong together. I felt you deserved that explanation so I would have to say it isn't. Representative Flanagan: Thank you, Mister Speaker. I respect your opinion.
Speaker ShurtleffThank you. The question before the House is the motion that the bill Ought to Pass. The Chair recognizes Rep. Yokela, the member from Fremont.
Rep. Josh Yokela (R - Rock 7)Thank you, Mister Speaker. I rise in opposition to HB 1601 and I am happy to go through all of the flaws that I have identified so far. I think that we definitely should not pass the bill just to push it onto another committee just because they are better suited to decide how to fix this bill. The first part of this bill, which we have already touched on, it forbids people with a disability, which have been deemed not to consent, and the examples that you have heard before are someone that has early onset dementia or some reason which under certain circumstances they may not be able to consent. If you, and my grandmother had Alzheimer and dementia and from time to time she was lucid and able to understand what was happening and other times not. She was entrusted into the care of her spouse for many years before it became too much for the spouse to be able to take care of them. I don't know if they had sex during that situation, but it's possible and I don't think that they should be, my grandmother or grandfather should be a felon and a person that is a sexual offender because of that. Another situation, that's the first problem. The second problem, as I'm going to go down the list, so there is section two. It says when a victim, with a crossed out between legally married spouses, the victim 13 years and older and under 18 years of age acting in a position of authority over the victim and uses that authority to force the victim to submit. If you change this, this will also change the policy for 16 and 17, 18 years old's that are able to consent or 16 or 17 year old's that are able to get into a legal marriage in the State of New Hampshire and the person, the example that I am going to give is a 16 year old and a 17 year old having, get married. One of them, let's say, is the manager of McDonald's and one of them is the clerk at McDonald's and they are into some or they are experimenting in their sexuality and want to try some bondage or other type of situation which. I tried to table this. You wanted this. So, in certain circumstances, the person which is in charge of or has some position of authority, may be in such a situation that they are, when read on paper, maybe because they fell out of, the relationship soured or something and one or the other brought a charge of felonious sexual assault against the other. They could essentially be making that other person a felon and so then those same people, one of them, let's say has a vehicle and the other one doesn't. The other person wants them to take them to work that day and the other person doesn't feel like it.
Speaker ShurtleffWill the member suspend? I just caution you in your comments that you make. Please continue.
Rep. Josh Yokela (R - Rock 7)Do you think I said anything inappropriate?
Speaker ShurtleffNo, but you came a little close to the line. You didn't skate over the line, but you did skate right up to it.
Rep. Josh Yokela (R - Rock 7)We are going to keep going down this road then.
Rep. Josh Yokela (R - Rock 7)So, the one person has access to a vehicle and the other person doesn't and the other person doesn't want to take them to work that day and the other person kind of makes a bargain that if the other person wakes them up via sex then they are able to take them to work. Now, is this some use of coercion of someone that is in the position of authority? It's very tough for someone to decide what is and is not within a relationship a position of authority in each instance and it can be misused especially with the relationship souring or whatever which happens with young people. I think it would unnecessarily capture that so on to the next problem with this bill. So, New Hampshire is not the only state and not every state in this United States has the same laws that New Hampshire does and New Hampshire, the example that I am going to use is Maryland. Maryland allows in cases of pregnancy the opportunity for someone that is 15 to enter into a marriage contract. So let's say a 15-year-old guy gets a 20-year-old girl pregnant and in that state and marries them, legally in that state they go to court and prove whatever they need to prove. They are legally married. They come to this great state of New Hampshire because of all the freedoms that we have for their honeymoon. They get arrested and charged for being a felon on their honeymoon night. All of these types of issues and I feel like I've kind of made my point. All of these issues are not something that we should take lightly and just pass out of committee and then pass on to another committee to address and fix these problems. Thank you for your attention and please vote this bill down. Thank you.
Speaker ShurtleffThe question before the House is the recommendation that the bill Ought to Pass. The Chair recognizes the member from Stratham, Rep. Altschiller to speak in support of the recommendation.
Rep. Debra AltschillerThank you, Mister Speaker. House Bill 1601 is very serious and actually didn't need to be this hard, but it is very serious. It's an opportunity for this body to remove exceptions from prosecution from aggravated felonious sexual assault statute. For those of you who are not familiar with aggravated felonious sexual assault statute, you might think wow there are some people who get a free pass. They get a ticket to go if they commit aggravated felonious sexual assault? How could that be? How could that be? Well, it could be because we have loopholes in the statute addressing aggravated felonious sexual assault. There are seven places where there are exceptions to aggravated felonious sexual assault and those exceptions are
all between legally married spouses. We call that a marriage shield. I committed a crime, but nope, can't get me because I'm married. I raped my spouse, but nope, I can't be arrested because I'm married. Recognizing that there should be no exceptions in the law for anyone committing aggravated felonious sexual assault, HB 1601 seeks to close all the remaining loopholes that provide a shield with marriage. The first marriage shield loophole HB 1601 seeks to close is and reads as follows. It's under RSA 632-A:2(h), when except as between legally married spouses. Now, here is where this law applies to everybody else in the room, except if you do this to your spouse. The victim has a disability that renders him or her incapable of freely arriving at an independent choice as to whether or not to engage in sexual conduct and the actor, and in this case the spouse, knows or has reason to know that the victim has such a disability. So what we would like to do is remove an exception for married spouses. So we asked the disability rights council to weigh in and they were actually surprised because they thought it was pretty obvious and they didn't think this was going to be a heavy lift and they certainly never thought we would be in a floor fight arguing whether or not it's okay to rape your disabled spouse, but okay, here we are. I reached out and I got back from the Disability Rights Council of New Hampshire all adults, including people with disabilities, have the right to enjoy relationships and sexuality without being abused or exploited. Unfortunately people with disabilities experience all forms of abuse including sexual abuse at higher rates than the general population. Sexual activity with a person who has a disability that is significant enough to make them unable to freely consent should be prohibited by law regardless of whether there is a marital relationship between the parties. HB 1601 removal of the marital exception in cases involving the inability to consent would therefore provide valuable new protections to people with disabilities. So that takes care of the first part. We have the Disability Rights Council of New Hampshire who supports this and we would like to remove the marriage shield from prosecuting aggravated felonious sexual assault with people who are unable to consent. In the previous legislative session we saw fit to raise the marriage age to 16 years old from its previous 13-year-old for girls and 14 years old for boys. That was great. We left behind a couple of loopholes. While that's a much-celebrated piece of progress, there remains some vestiges of that former policy in statute addressing aggravated felonious sexual assault. There are six places where there are exceptions in the law between legally married spouses under the age of 16. Before I go into them, I just want to reiterate that we have statistics. We know because according to the National Coalition Against Domestic and Sexual Violence, New Hampshire is only 1 of 17 states that have left their loopholes in place. Thirty-three other states have already got on this and fixed it. We are left in the company of Alabama, Mississippi, Oklahoma, South Carolina and I could go on. Marital rape, marital rape is 4 times more common than stranger rape. Aggravated felonious sexual assault. Mister Speaker, may I have the room?
Rep. Debra AltschillerMay I have the attention of the room please?
Speaker ShurtleffWell, the members are all sitting at attention.
Rep. Debra AltschillerOkay, thank you. It seems to be a little loud. I can't hear myself.
Speaker ShurtleffI have heard louder, but please be attentive to the speaker.
Rep. Debra AltschillerThank you. Aggravated felonious sexual assault is RSA 632-A2. Here are exceptions. It is aggravated felonious sexual assault when the victim is 13 years of age or older and under 16 years of age. That's our age of consent except between legally married spouses. We would like to remove that. When the victim is 13 years of age or older and under 18 years of age and the actor is in the position of authority over the victim and uses this authority to coerce the victim to submit except between legally married spouses. We would like to remove that. Engages in sexual penetration with a person who is 13 years or age or older and under 16, age of consent, where the age difference between the actor and other person is 4 years or more, that is already aggravated felonious sexual assault in statute except for married people. Engages in sexual contact with a person who is under 13 years of age, other than his legal spouse. You can't have that anymore. We would like to remove that. When the actor subjects another person who is 13 years of age or older and under 16 years of age, again the age of consent, to sexual contact with the age difference between the actor and the other person is 5 years or more, other than the actors' legal spouse. We would like to remove that. And finally, in the absence of any of the circumstances set forth in RSA 632-A:2 when the actor engages in sexual penetration with a person who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less, that is aggravated felonious sexual assault under the law right now except for married people. So consent is more than simply saying yes. I feel like this needs to be addressed given some of the conversation that's happened here. Consent is freely giving agreement to have sexual intercourse or sexual contact and is indicated by words or actions by a person legally and functionally competent. Consent is only possible if there is equal power. A person that is functioning at diminished capacity cannot legally consent to engaging in sexual contact and activity. Sexual assault is a crime of power and control, no exceptions. New Hampshire has been a leader in protecting victims of sexual assault. We have an opportunity to close up some loopholes in the aggravated felonious sexual assault statute because we know that simply being married is not a shield for sexual assault. Let's use the opportunity we have here to close these loopholes and protect our citizens. Please support the committee recommendation of Ought to Pass and press the green button. Speaker Shurtleff: Will the member yield to a question? Rep. Abramson, you may inquire.
Rep. Max Abramson (R - Rock 40)Thank you, Mister Speaker. Thank you for taking my question. If you have even one neighbor accuse you of being a mental invalid, whether they are serious about it or not, how do you have sex with your partner without risking prosecution under this?
Rep. Debra Altschiller-I'm sorry is your neighbor your physician who is doing a diagnosis or is your neighbor shouting from the window an observation about your behavior? I need more clarification.
Speaker ShurtleffMaybe you can re ask your question, if the member would?
Rep. Max Abramson (R - Rock 40)Under our criminal cases, jurors are allowed to cherry pick facts and they are allowed to cherry pick any statement they want. Anyone can just declare you, it's much easier than most people assume to be declared mentally invalid or mentally disabled or emotionally disabled. So if only one neighbor says well that person is crazy and if the jury chooses to believe that witness, how do you then have sexual relations with your partner?
Rep. Debra AltschillerI'm sorry Representative Abramson I can't agree with the premise of your question so therefore I am unable to answer that hypothetical because the premise is not something that is based in fact or reality.
Speaker ShurtleffWill the member yield to another question? Rep. Flanagan, you may inquire.
Rep. Jack Flanagan (R - Hills 26)Thank you again Mister Speaker. I thank the member for taking my question. In light of the divorce rates in this state and others at 50% and second marriages failing at about 80%, was there any discussion in committee about abusing this law as it relates to claims of sexual assault?
Rep. Debra AltschillerI'm sorry, I don't understand the question.
Rep. Jack Flanagan (R - Hills 26)Okay, let me restate it. If a couple is going through a difficult time and they call the police and claim under this law that they were sexually assaulted, even though they weren't, did the committee discuss the abuse similar to that?
Rep. Debra AltschillerThe committee did not discuss divorce. That was not part of the bill. The bill is to remove the exception for married minors and adults who have disabilities.
Rep. Jack Flanagan (R - Hills 26)Thank you for trying to answer my question.
Speaker ShurtleffWill the member yield to another question? Rep. Prout, you may inquire,
Rep. Andrew Prout (R - Hills 37)Thank you, Mister Speaker. Thanks to the member for taking my question. I'm assuming regarding disabled adults that the adult became disabled sometime after the marriage or else they wouldn't have been able to consent to the original marriage. What would you recommend to someone like I do who has dementia running in the family and wants to protect their spouse from future accusations when it becomes questionable with my abilities? Would you recommend we add durable power of attorney clause on this topic? What would two people that are currently not disabled, but see that in the future do to address this topic if this law passed?
Rep. Debra AltschillerThank you for asking the question. I think this gives an opportunity to reiterate what the statute is right now. As the statute stands right now under 632-A:2(h) when except as between legally married spouses, the victim has a disability that renders him or her incapable of freely arriving at an independent choice as to whether or not to engage in sexual conduct and the actor knows or has reason to know that the victim has a disability and when we look at consent, consent is freely giving agreement to have sexual intercourse or sexual contact by someone who is legally and functionally competent. A person who is functioning at diminished capacity cannot legally consent to engaging in sexual conduct and activity. We would like to protect people who are unable to give consent or withdraw consent freely which they are protected now if they have a disability and take out the exception for married people so that they also don't abuse their status to force sexual intercourse or sexual behaviors on a spouse with a disability who is unable to give consent freely or withdraw consent freely. I hope that answers your question.
Speaker ShurtleffWill the member yield to another question? Rep. Alicia Lekas, you may inquire.
Rep. Alicia Lekas (R - Hills 38)The couple has been married for 50 years and each know that the other one loves physical contact and sex and that gives comfort. Would a person, if one of them became or had dementia or whatever, would the other one automatically become a rapist?
Rep. Debra AltschillerHow would the prosecution get information like that? Maybe follow through and tell me how they would be aware of this? So when a prosecutor becomes aware that there is a person who has been forced without being able to give consent freely and withdraw consent freely, then they are under obligation of our law as it stands right now that is aggravated felonious sexual assault. In the scenario you are describing, at what point does law enforcement become involved?
Speaker ShurtleffDo you wish to ask a follow up question? You may inquire.
Rep. Alicia Lekas (R - Hills 38)I guess that was partly my question. How would you know whether or not it was rape if this law, I mean am I correct in assuming that it is automatically rape because it says you can't do it?
Rep. Debra AltschillerWe would like to apply aggravated felonious sexual assault, RSA 632-A:2 as it applies to everyone in this room to everybody in our state and that you should not be able to say it's not rape that I forced my disabled partner to have sex with me because I'm married to them and right now that's legal and that's not okay. That's it. I'm all done.
Speaker ShurtleffThe member does not yield. The question before the House is the recommendation that the bill Ought to Pass. Rep. Cali-Pitts is recognized for a motion.
Rep. Jacqueline Cali-Pitts (D - Rock 30)I'm not expert, but I've heard a lot of testimony and I'd like to make a motion that this bill be Indefinitely Postponed.
Speaker ShurtleffThe motion before the House is the recommendation that the bill be Indefinitely Postponed. Somebody asked for a roll call? Is that sufficiently seconded? It is sufficiently seconded. This will be a roll call vote. Members will kindly take their seats. The question before the House is the motion to Indefinitely Postpone this bill and for our freshman members and maybe for even those that have been here as long as myself, we don't normally see a motion of Indefinitely Postponement so I want to explain exactly what it is. Indefinite Postponement if passed means that the bill cannot come up again in this session. Having said that the Chair recognizes Rep. Cali-Pitts for a parliamentary inquiry.
Rep. Jacqueline Cali-Pitts (D - Rock 30)If I know that they seems to be a lot of confusion about this bill. And, if I know that I have many friends who are disabled, some severely and some not, who welcome affection and sometimes can't express that. And, if I know that battery, abuse is still a crime in this country, would I now vote to keep the states out of the bedrooms of the people we want to help the most?
Speaker ShurtleffThe House will be in order. The question before the House is the motion to Indefinitely Postpone HB 1601. The Chair recognizes Rep. Ley for a parliamentary inquiry.
Speaker ShurtleffWell, you can say that. Rep. Ley, you are recognized.
Rep. Douglas Ley (D - Ches 9)Thank you, Mister Speaker. Mister Speaker, if I know that we have already heard a lengthy debate on this bill, therefore I think it is time to actually vote on the bill itself rather than postpone. Second, Mister Speaker, if I believe that it is necessary, this bill does provide necessary protections for those in need of protection and does close necessary loopholes in current statute. And, finally Mister Speaker, if I know that this bill will be going to a second committee where corrections can and will be made, would I now vote against Indefinite Postponement by pressing the red button? Thank you.
Speaker ShurtleffThe question before the House is the motion to Indefinitely Postpone this bill. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will be attentive to the state of the vote. With 140 members voting Yea and 212 voting Nay, the motion fails. The question before the House is the recommendation that the bill Ought to Pass. A division has been requested. This will be a division vote. Members will kindly take their seats and we will open the doors in case anybody is coming in late and did not get a chance to come in on the last vote. The question before the House is the recommendation that the bill Ought to Pass. The Chair recognizes Rep. DeSimone for a parliamentary inquiry.
Rep. Debra DeSimone (R - Rock 14)Thank you, Mister Speaker. Mister Speaker, if I know that there may be a 13-year-old who has yet to age out since we changed the age of consent to 16. And, if I know that any senior citizen who goes to a physician and is asked the question are you sexually active, that physician is a mandated reporter and shall report if the senior citizen is being forced already. And, if I further know that this bill should have gone to another committee, not Children and Family Law, would I now vote red to overturn the Ought to Pass motion so that another motion can be brought? Thank you.
Speaker ShurtleffThe question before the House is the recommendation that the bill Ought to Pass. The Chair recognizes Rep. Long for a parliamentary inquiry.
Rep. Patrick LongThank you, Mister Speaker. Mister Speaker, if I know that the majority of Children and Family Law did their due diligence and supports the Ought to Pass and don't find an issue with is. And, if I further know that this closes the loopholes for aggravated felonious sexual assault when it comes to exempting married couples, would I then press the green button? Thank you, Mister Speaker.
Speaker ShurtleffThis will be a division vote. The question before the House is the recommendation that the bill Ought to Pass. If you are in favor, you'll press the green button. If you are opposed, you will press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will be attentive to the state of the vote. With 217 members voting Yea and 136 voting Nay, the motion carries and this bill will be referred to Criminal Justice and Public Safety.