GLAA testifies on Omnibus Public Safety Act
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Bill 16-0247

D.C. Council

GLAA on Public Safety

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GLAA testifies on Omnibus Public Safety Act

Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013

Testimony before the D.C. Council Committee on the Judiciary

"Omnibus Public Safety Act of 2005", B16-0247

Tuesday, May 31, 2005

Chairperson Mendelson, Members of the Committee, and Fellow Citizens:

My name is Bob Summersgill. I am the Treasurer of the Gay and Lesbian Activists Alliance of Washington (GLAA), the nation's oldest continuously active gay and lesbian rights organization.

Omnibus Public Safety Act of 2005 is an extremely wide-ranging series of code revisions, each of which should have its own bill and hearing to flesh out the implications and effects. We would be more comfortable leaving the proposals in this bill to the Criminal Code Reform Commission recommended in the "Criminal Code Reform Commission Establishment Act of 2005", B16-0172.

GLAA has found problems, shortcomings, and inconsistencies in Titles VIII, Intrafamily Violence; X, Sexual Abuse; XI , Mandatory Reporting of Child Abuse or Neglect; XII, Mandatory Reporting of Crimes Against Children; XIII, Enhanced Penalties for Crimes Against Children; XIV, Contributing to the Delinquency of a Minor; XVI, Child's Willful Failure to Appear for Hearing, and XX, Prostitution.

Title VIII, Intrafamily Violence would amend the definition of who is a family member for the purposes of broadening the range of what constitutes domestic violence. This is a good expansion, but it fails to include domestic partners, former domestic partners, and their partners and former partners. There is an implicit inclusion, but that should be made explicit as we further expand the rights and responsibilities of domestic partners in legislation such as the Domestic Partnership Equality Act of 2005, Bill 16-52.

We recommend including the recommended additions in the bill with the inclusion of domestic partnerships throughout. This would be accomplished by replacing section 16-1001(5) with:

(5) The term "intrafamily offense" means an act punishable as a criminal offense committed by an offender upon a person:
(A) to whom the offender is related by blood, legal custody, marriage, domestic partnership, having a child in common, or with whom the offender shares or has shared a mutual residence; or
(B) with whom the offender maintains or maintained a romantic relationship not necessarily including a sexual relationship. A person seeking a protection order under this subparagraph shall reside in the District of Columbia or the underlying intrafamily offense shall have occurred in the District of Columbia; or
(C) who was or is married to, a domestic partner to, divorced or separated from, or in a romantic relationship, not necessarily including a sexual relationship, with a person who was or is married to, a domestic partner to, divorced or separated from, or in a romantic relationship, not necessarily including a sexual relationship, with the offender; or
(D) who had been stalked or is being stalked by the offender.

Title X, Sexual Abuse makes a careful distinction between a child, "a person who has not yet attained the age of 16 years" and a minor, "a person who has not yet attained the age of 18 years or a person attending high school or its equivalent who has not yet attained the age of 19 years." This distinction is somewhat subtle, but it appears to have been handled correctly. The age of consent is defined as 16 years of age in 46-403. Thus a child cannot consent to sex, but a minor 16 years of age or older may do so. Title X ensures that an adult does not sexually abuse minors who are under their care or supervision, described in the law as having a significant relationship.

We have a recommendation for this section, again to recognize domestic partners as significant and legal relationships.

Subsection (10) is amended as follows:

(10) "Significant relationship" includes:
(A) A parent, sibling, aunt, uncle, or grandparent, whether related by blood, marriage, domestic partnership, or adoption;
(B) A legal or de facto guardian or any person, more than 4 years older than the victim, who resides intermittently or permanently in the same dwelling as the victim;
(C) The person or the spouse, domestic partner, or paramour of the person who is charged with any duty or responsibility for the health, welfare, or supervision of the victim at the time of the act; and
(D) A teacher, scout master, coach, recreation center leader, or others in similar positions.

Further, to avoid any inappropriate defense using spousal immunity expanded to domestic partners, the following two sections of code in this chapter should be amended.

Section 218 (D.C. Official Code 22-3019) "No spousal immunity from prosecution." Should be amended to read as follows:

No actor is immune from prosecution under any section of this subchapter because of marriage, domestic partnership or cohabitation with the victim; provided, however, that marriage or the domestic partnership of the parties may be asserted as an affirmative defense in a prosecution under this subchapter where it is expressly so provided.

Section 302 (D.C. Official Code 22-3024) "Spousal privilege inapplicable" should likewise be amended to read as follows:

Laws attaching a privilege against disclosure of communications between spouses or domestic partners are inapplicable in prosecutions under subchapter II of this chapter where the defendant is or was married to the victim, a domestic partner of the victim or where the victim is a child.

Titles XI, XII, XIII, XVI, and XX of this Act define a child as a person under 18 years of age. This is further complicated by the definitions that convey from 16-2301 in which a minor is a person under 21 years of age. These definitions are inconsistent with the definitions in titles X, XIII, and XIV of this Act. Common definitions of child, minor, and adult should be used throughout the Code. The definitions in the latter three titles are more useful in distinguishing between people older and younger than 16 years.

Title XX, Prostitution takes a step forward by redefining the charge of soliciting for prostitution to remove "Solicitation for Lewd or Immoral Purposes" (SLIP). As detailed in today's testimony on the "Criminal Code Modernization Amendment Act of 2005", B16-0130, this is a pernicious clause that was regularly used by the police more 30 years ago to harass and entrap gay men. We are very pleased to have it repealed, whether through this bill or B16-0130.

We do find the continued criminalization of prostitution to be a failed policy that is more harmful than the problem that it seeks to prohibit. Police actions have only pushed prostitution from neighborhood to neighborhood without ever addressing the underlying economic issues. Further, by pushing the sex-trade industry underground, there is no legal recourse for disputes between prostitutes, their clients, or their pimps. Consequently, violence is the de facto means of settling disagreements.

We believe that a more constructive way to handle the inevitability of prostitution is to legalize it, license it, regulate it, zone it, and tax it. In that manner, the most deleterious effects of prostitution, and especially street prostitution and its negative effects on neighborhoods, would be mitigated.

We recognize that this is a radical, if sensible, idea and that it will not adopted in this bill, or in any legislation in the near term. Today we seek to start a conversation, which may lead to a more reasonable policy in the future.

Title XX does present language that, like other areas of this bill, fails to recognize domestic partnerships. 22-2705(a)(3) is amended by the bill to read:

(a) It is unlawful for any person, within the District of Columbia to:
(3) take or detain an individual against the individual's will, with intent to compel such individual by force, threats, menace, or duress to marry the abductor or to marry any other person.

It could be better written:

(a) It is unlawful for any person, within the District of Columbia to:
(3) take or detain an individual against the individual's will, with intent to compel such individual by force, threats, menace, or duress to marry or be registered as a domestic partner to the abductor or to marry or be registered as a domestic partner to any other person.

22-2705(1)(b) is amended by the bill to read:

(b) It is unlawful for any parent, guardian, or other person having legal custody of the person of an individual, to consent to the individual's being taken, detained, or used by any person, for the purpose of prostitution or sexual intercourse.

Similar language is used in Section (2)(a).

"Sexual intercourse" limits the range of prohibited sexual activities in this section. It should be replaced with a phrase such as "sexual contact" similar to the definition found in 22-3101, Sexual Performance Using Minors.

In my testimony today for bill 16-0130, I offered the definition of sexual contact. We recommend that it be used here as well:

(1) Sexual contact:
(i) Between the penis and the vulva, anus, or mouth;
(ii) Between the mouth and the vulva or anus; or
(iii) Between an artificial sexual organ or other object or instrument used in the manner of an artificial sexual organ and the anus or vulva;
(2) Masturbation;

(3) Bestiality; or

(4) Sadomasochistic sexual activity for the purpose of sexual stimulation.

Domestic partners are also left out of 22-2708, which is not addressed in the bill, but related to Title XX. We recommend that the Anti-Gender Discriminatory Language Criminal Offenses Amendment Act of 1994, approved May 21, 1994 (D.C. Law 10-119; D.C. Official Code 22-2708) is amended as follows:

Any person who by force, fraud, intimidation, or threats, places or leaves, or procures any other person or persons to place or leave, a spouse or domestic partner in a house of prostitution, or to lead a life of prostitution, shall be guilty of a felony, and upon conviction thereof shall be imprisoned not less than one year nor more than 10 years.

The heading for section 12(d) (D.C. Official Code 22-2708) should also be amended to read as follows: "Causing spouse or domestic partner to live in prostitution."

Lastly, domestic partners should be explicitly included in the "HIV Testing of Certain Criminal Offenders Act of 1995," approved November 11, 1995 (D.C. Law 11-74; D.C. Official Code 22-3901) subsection 2 paragraph (5) should be amended as follows:

"Victim" means a person injured by the commission of an offense; and includes the parent or legal guardian of a victim, if the victim is a minor; or the spouse, domestic partner, or child of a victim, if the victim is deceased or incapacitated.

Thank you for your consideration of this bill. I am available to answer any questions that you may have.

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