A2725

ASSEMBLY, No. 2725

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 10, 1997

By Assemblyman DiGAETANO

An Act concerning certain dangerous substances and certain sexual assaults and amending and supplementing various sections of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:14-2 is amended to read as follows:

2C:14-2. Sexual assault. a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and either of the following circumstances exists:

(a) The actor uses physical force or coercion, or

(b) The victim is one whom the actor knew or should have known was physically helpless[,] or mentally defective [or mentally incapacitated], or

(c) The victim is one whom the actor knew or should have known was mentally incapacitated due to the influence of a narcotic, anesthetic, intoxicant or other substance administered to the victim without the victim's prior knowledge or consent;

(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim.

Aggravated sexual assault is a crime of the first degree, however, notwithstanding the provisions of N.J.S.2C:43-6 or any other law to the contrary, a person convicted of aggravated sexual assault upon a victim who was mentally incapacitated pursuant to subparagraph (c) of paragraph (5) of this subsection shall be sentenced by the court to a term of imprisonment of at least 20 years. The term shall include a mandatory minimum term of 15 years, during which the person shall not be eligible for parole.

b. An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is one whom the actor knew or should have known was physically helpless[,] or mentally defective [or mentally incapacitated];

(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(4) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power over the victim; or

(5) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim; or

(6) The victim is one whom the actor knew or should have known was mentally incapacitated due to the influence of a narcotic, anesthetic, intoxicant or other substance administered to the victim without the victim's prior knowledge or consent.

Sexual assault is a crime of the second degree unless it is committed upon a victim who was mentally incapacitated pursuant to the provisions of paragraph (6) of this subsection, in which case it is a crime of the first degree. Notwithstanding the provisions of N.J.S.2C:43-6 or any other law to the contrary, a person convicted of sexual assault upon a victim who was mentally incapacitated shall be sentenced by the court to a term of imprisonment of at least 15 years. The term shall include a mandatory minimum term of 10 years, during which the person shall not be eligible for parole.

(cf: P.L.1989,c.228,s.3)

2. N.J.S.2C:14-3 is amended to read as follows:

2C:14-3. Criminal sexual contact.

a. An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in 2C:14-2a. (2) through (6).

Aggravated criminal sexual contact is a crime of the third degree.

b. An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c. (1) through [(5)] (6).

Criminal sexual contact is a crime of the fourth degree.

(cf: P.L.1979, c.178, s.27)

3. Section 1 of P.L.1962, c.113 (C.2A:170-77.8) is amended to read as follows:

1. Except as hereinafter provided, any person who uses or is under the influence of, or who possesses or has under his control, in any form, any prescription legend drug which is not a narcotic, depressant or stimulant drug or controlled dangerous substance as defined in N.J.S.2C:35-2 or section 2 of P.L.1970, c.226 (C.24:21-2) [or], any stramonium preparation or ketamine hydrochloride, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person.

In a prosecution under this act, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug or drugs except for stramonium preparations, but it shall be sufficient for a conviction under this act for the State to prove that the accused did use or was under the influence of some drug or drugs as aforesaid by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any such drug.

As used in this act, "stramonium preparation" means a preparation prepared from the leaves, seeds, or any other part of the stramonium plant in the form of a powder, pipe mixture, cigarette, or any other form, with or without admixture of other ingredients. "Stramonium plant" means the plant Datura Stramonium Linne, including Datura Tatula Linne.

(cf: P.L.1992,c.71,s.1)

4. Section 2 of P.L.1962, c.113 (C.2A:170-77.9) is amended to read as follows:

2. Except as hereinafter provided, any person who sells, dispenses or gives away, in any form, any prescription legend drug which is not a narcotic, depressant or stimulant drug or controlled dangerous substance as defined in N.J.S.2C:35-2 or section 2 of P.L.1970, c.226 (C.24:21-2), [or] any stramonium preparation or ketamine hydrochloride, is a disorderly person.

(cf: P.L.1992,c.71,s.2)

5. (New section) a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be a crime of the second degree for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense ketamine hydrochloride or gamma hydroxybutyrate.

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon a person who violates this section.

6. (New section) a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, either of the following substances, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L. 1970, c. 226 (C. 24:21-1 et seq.):

(1) ketamine hydrochloride; or

(2) gamma hydroxybutyrate.

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

7. (New section) a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it is a crime of the second degree for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense flunitrazepam.

b. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of one gram or more is guilty of a crime of the first degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $250,000.00 may be imposed upon the person.

c. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of less than one gram is guilty of a crime of the second degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon the person.

8. (New section) a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

9. (New section) a. The Department of Law and Public Safety shall establish and maintain a suitable training program for law enforcement officers regarding the use of narcotics, anesthetics, intoxicants, and other substances which could be used to facilitate sexual assault.

b. The Department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) rules and regulations necessary to implement this act.

10. This act shall take effect immediately.

STATEMENT

This bill imposes mandatory prison terms on persons convicted of sexual assault on victims rendered helpless by the unknowing ingestion of a narcotic, anesthetic, intoxicant or other substance. The bill also criminalizes the possession of certain "rape drugs," making such possession a crime of the third degree.

According to recent reports, the use of certain drugs to facilitate sexual assault is a growing problem. The drugs are often tasteless and odorless, and are slipped into victims' drinks so that the victims unknowingly ingest them.

The bill provides that a person who commits aggravated sexual assault against a victim who is incapacitated due to a narcotic, anesthetic, intoxicant or other substance administered without the victim's consent would be sentenced to a mandatory term of imprisonment of at least 20 years, which would include parole ineligibility for at least 15 years. The crime of sexual assault (normally a crime of the second degree), if committed under these circumstances, would be re-classified as aggravated sexual assault (a crime of the first degree), with a mandatory term of imprisonment of at least 15 years, including a 10-year term of parole ineligibility.

The bill also criminalizes the unlawful manufacture, distribution and possession of three particular substances: Rohypnol (flunitrazepam), ketamine hydrocholoride (a veterinary anesthetic nicknamed "Special K") and gamma hydroxybutyrate (GHB). The bill also allows increased fines for violators.

Under the bill, it would be a crime of the second degree to unlawfully manufacture, distribute or dispense any of these substances.

Fines of up to $250,000 could be imposed for persons who violate the statute. Persons who unlawfully possess any of the substances would be guilty of a crime of the third degree, and subject to fines of up to $100,000.

Finally, the bill requires the Department of Law and Public Safety to establish and maintain a suitable training program for law enforcement officers regarding the use of narcotics, anesthetics, intoxicants, and other substances which could be used to facilitate sexual assault.

Increases penalties and imposes mandatory terms for sexual assault committed with the use of certain substances; criminalizes possession of "rape drugs."