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	House Passes Aggravated Child Rape Bill Polito Seeks Mandatory Minimum Sentence By John J. Monahan Worcester Telegram & Gazette June 5, 2008 http://www.telegram.com/article/20080605/NEWS/806050803/1116/NEWSLETTERS08 BOSTON— The House last night adopted a bill to impose mandatory minimum sentences for new crimes of aggravated child rape, but rejected arguments from State Rep. Karyn E. Polito, R-Shrewsbury, to impose a mandatory minimum 10-year sentence for rape of a child with force. Ms. Polito argued the mandatory sentence for forcible child rape was needed to send a message that the state is tough on child rapists, guarantee that everyone convicted would serve jail time, and put the state in line with 42 others that have mandatory sentencing laws for child rape. "When we see the rape of a child, it should mean a mandatory sentence, not maybe," she said. "We ought to be offering the first, best protection," for the state's children, she argued before the amendment was rejected on a 123-24 vote with all 19 Republicans and five Democrats voting for the amendment. Critics, including House Judiciary Chairman Eugene L. Flaherty, D-Boston, argued against Ms. Polito's amendment, saying the state's district attorneys and Attorney General Martha Coakley have all recommended against the 10-year sentencing for forcible child rape. He said those officials, however, support the proposed new sentencing minimums for the new aggravated child rape offenses covering cases involving authority figures, use of a weapon or drugs. Mr. Flaherty argued the mandatory sentence proposed by Ms. Polito would limit prosecutors' ability to get convictions and plea agreements in cases such as those where a child would have difficulty testifying at a trial, or when witnesses are unwilling or afraid to testify against a family member. "While such legislation may sound tough on crime, it forces the prosecutor into an all or nothing situation," he said, citing a letter from the state's Association of District Attorneys. "If you vote for this amendment you are tying the hands of prosecutors. You are hampering their ability to prosecute these cases and the side-effect is you are actually making it easier for some of these people to go free," Mr. O'Flaherty said. The certainty of a 10-year mandatory sentence, said Rep. James H. Fagan, would force defense attorneys to forgo plea bargains and go to trial in almost every case, subjecting child witnesses to damaging confrontations in court. Ms. Polito said the other provisions that were adopted on the new charges of aggravated rape of a child will mark progress in toughening child rape laws. But, she said, "I don't feel it goes far enough. I am concerned it still does not guarantee a convicted child rapist will do one day in jail. It should not take an aggravated circumstance to require that." The package approved by the House on a 145-3 vote would create the new crimes of aggravated child rape when a weapon is used, when the victim is drugged or when the perpetrator is in a position of authority such as a teacher, coach or clergy, and impose a mandatory 10-year sentence for first offenses. It would also impose minimum sentences of 10 to 15 years for child rape for those previously convicted of crimes such as indecent assault and battery against a child or attempted rape of a child. Other provisions would create three new criminal charges with mandatory minimum sentences — aggravated forcible rape, aggravated statutory child rape and aggravated assault and battery on a child. The legislation would also give the state and police new powers to obtain the names of Internet subscribers using only administrative subpoenas instead of court-authorized subpoenas, to more readily track down Internet predators, according to Ms. Coakley. "We made some progress today to protect children in the commonwealth," said Ms. Polito, who many legislators credited with pressuring Democrats to bring the bill to toughen child rape laws out of committee and up for a vote before this year's session ends. But, she said, "It still leaves open the possibility of no time served for a child rapist." Mr. O'Flaherty complained openly that some proponents for tougher child rape laws have resorted to "sensationalism" and "vilification of individual members" of the Legislature to promote the mandatory-minimum sentencing of child rapists. However, he said that extensive consultations with prosecutors resulted in the proposals that would give the state new tools and needed flexibility to prosecute child rapists and protect children. It was unclear until last month whether the legislation would emerge this year from Mr. O'Flaherty's committee. Ms. Polito, however, secured a commitment from House Speaker Salvatore F. DiMasi last month to put it before the House for a vote, in return for an agreement to withdraw a budget amendment she had offered that would have injected the mandatory-sentencing issue into the House budget debate. House Assistant Minority Whip George N. Peterson, R-Grafton, was among several lawmakers yesterday who said Ms. Polito's advocacy on the issue for the past two years brought the issue to the House floor yesterday. "She has been the one who pushed this from day one. During the budget she forced the issue to get a commitment that it would come out of committee and would be debated," Mr. Peterson said. "I don't think it ever would have come up if it hadn't been for her really pushing this issue over the last couple of years." Two weeks ago, after that commitment was made, Mr. O'Flaherty, Attorney General Coakley and several prosecutors held a press conference laying out their version of the bill, which was adopted in the House last night. While Ms. Polito lost the bid for the minimum sentencing for forcible child rape, Mr. Peterson said, the legislation adopted last night was a major breakthrough in toughening child rape laws. Mr. O'Flaherty said during the debate that prosecutors also agreed there was a great need to improve the prosecution and sentencing of repeat child rapists and aggravated child rape offenses. "They recognized the system we have in Massachusetts is broken," he said. "It has allowed child predators to get back out in the street and re-offend," he said, adding there was a widespread recognition that the average rate of sentencing on such offenses is "too low."
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