Aircraft Hijacking

(C. §1635, S.1 §2-7D4, S.1400 §1625)

Both S.1 and S.1400 define the offense of aircraft hijacking more broadly than does the Commission bill. Thus, both proposals apply to an unlawful seizure of an aircraft whether it is in flight or not. We favor the broadening of the application of this provision to attempt to deter an extremely serious offense which affects large numbers of innocent bystanders and knows no national boundary lines. While we believe, as is noted above in the discussion of general definitions, that the special aircraft jurisdiction is defined too broadly in S.1400, we approve of the special jurisdictional provisions applicable to aircraft hijacking which are contained in S.1400 §1625(c)(2).

In addition, we believe the grading of the offense in S.1400, providing for a lesser grade for hijacking where no one is injured, is preferable to induce the release unharmed of crew members and passengers.

Commandeering of a Vessel

(C. §1805, S.1 §2-7D5, S.1400 §1626)

The three proposed sections are substantially similar in definition and jurisdiction. The only major difference relates to grades of offense. S.1 grades the offense so that it is a Class B felony if committed by a crew member and otherwise a Class C felony. S.1400 provides for substantially reduced grades, D and E, and, in addition to the distinction drawn by S.1, includes in the higher grade an offense committed on the high seas by anyone. The Commission bill provided for Class B and C felonies, with the difference based solely on whether the offense was committed on the high seas.

We believe that commandeering of a vessel is extremely serious whether done by a crewman or another, particularly where such acts may be done for political or terroristic motives. We, there

fore, do not favor a distinction in grade based on the identity of the defendant. Nor do we believe that the distinction in grade based upon whether or not the vessel is on the high seas, serves any legitimate purpose. As was previously noted, aircraft hijacking is not graded on the basis of whether the aircraft is hijacked on the ground or in the air, but is based on the release unharmed of passengers and crew members. We recommend that a similar distinction apply in this analogous offense involving vessels.

Maiming and Assault

(C. §1611-12, S.1 §2-7C1-C2, S.1400 $1611-12)

We were critical of the Commission's handling of assault because the provision on aggravated assault categorized all serious bodily injury assaults as Class C felonies. We suggested, at page 65 of our prior report, that a Class B felony be provided for the intentional infliction of a permanently crippling or seriously maiming injury.

Both S.1 and S.1400 contain provisions like those recommended in our initial report. While S.1400 categorizes these serious assaults as Class C felonies, the authorized terms of imprisonment in S.1400 (see $2301) in fact permit a higher sentence than the comparable Class B felony classification in S.1.

Reckless Endangerment

(C. §1613, S.1 (no provision), S.1400 $1615)

We have previously criticized Section 1613 of the Commission bill for attempting to distinguish between two grades of endangerment, involving the creation of "a substantial risk of serious bodily injury or death to another," where the circumstances reflect the accused's "extreme indifference to the value of human life”, and where no such circumstances exist. We believe that this distinction is unworkable and suggest that all reckless endangerments be Class A misdemeanors.

S.1400 is substantially identical to the Commission bill.

S.1 has avoided this problem simply by eliminating this concept of reckless endangerment from the bill.

We believe a section on reckless endangerment should remain in the adopted legislation, but reiterate our view that the unworkable distinction based on finding of extreme indifference to the value of human life be eliminated.

Criminal Coercion

(C. §1617, S.1 §2-9C4, S.1400 §1723)

In our original report, at pages 67-68, we criticized the Commission bill because of its possible "chilling effect" on legitimate activities by citizens to pressure others to desist from anti-social behavior. We therefore suggested that the crime of coercion based on a threat to prosecute for a crime require proof of corrupt intent.

S.1 avoids much of this problem by eliminating certain of the more controversial provisions. S.1400 limits the crime of coercion to "obtain[ing] property of another" by threats, unlike the Commission bill which defined the crime as including the use of the specified threats to "compel another to engage in or refrain from conduct."

We believe, however, that further tightening is necessary especially because of S.1400's broad definition of “property” (§111, p. 17) to include, e.g., “tangible or intangible personal property . contract right... information . . . credit . . . anything of value. and because the general attempt provision would not require that property actually pass for the crime to be committed ($1001, p. 32).

...

Unless the section is narrowed, legitimate activities might be deterred. See our earlier report, pp. 67-68; Special Committee on Consumer Affairs, "The proposed New Federal Criminal Code and Consumer Protection", 27 Record of The Association of the Bar of the City of New York, 324 (1972).

Consequently, we believe that our original recommendation that the crime be required to be committed corruptly, i.e., with evil intent to obtain personal gain by unfair means and not in the course of a bona fide dispute - should be adopted.

Rape

(C. §1641, S.1 §2-7E1, S.1400 $1631)

As set forth in our initial report, the Committee agreed with the Commission bill that Class A felony treatment for consensual sexual intercourse should be limited to cases involving children under the age of 10. For the reasons stated at pages 69-70 of our report the Committee was divided on the issue of recommending the creation of a Class C felony to cover consensual sexual intercourse with a person between the ages of 10 and 14.

S.1, in Section 2-7E2, would treat consensual sexual intercourse as a Class D felony if the victim is between 13 and 16 years old, Class C if between 10 and 13, and Class B if under 10. S.1400 grades all rape as a Class C felony and raises the minimum age of consent to 12. The Committee remains divided on the issue of the minimum age of consent for the reasons discussed in our report.

We generally approve of the provision in S.1400 (§1631(c)(2)) which grants jurisdiction over a rape where it is committed in conjunction with certain other cognizable federal crimes. However, we have some difficulty with the draftsmanship of this jurisdictional subsection. Under this subsection there would be federal jurisdiction over a rape committed during the immediate flight from the commission of the offense of tampering with a witness in a federal proceeding. Putting aside the inherent improbability of such a crime, there will necessarily be serious problems relating to the exact conduct and time period covered by the term "immediate flight from..." as used in this subsection. This same observation applies equally to the jurisdictional subsections of §1632 and §1633.

Sodomy

(C. §1643-1644, S.1 §2-7E1, S.1400 §1631)

The Commission bill unnecesarily separates the crime of sodomy from the crime of rape. Both S.1 and S.1400 include both in one section by defining the crime as a sexual act, rather than limiting it to sexual intercourse. The Committee agrees with this approach. We note, however, that S.1, unlike S.1400, contains no definition of "sexual act" or "sexual contact." Such definitions are necessary.

Sexual Abuse of a Minor

(C. §1645, S.1400 §1633)

S.1400 is substantially identical to the Commission bill, excepting the addition in S.1400 of an affirmative defense that the defendant believed the other person to be at least 16 years of age.

S.1 includes no comparable provision, its provisions concerning sexual acts with underage persons being limited to the statutory rape section (§2-7E2).

As indicated in our original report, at page 70, a majority of the Committee approves of the inclusion of an age differential in a provision dealing with sexual abuse of minors. The Committee, however, continues to be divided on the exact formula to be utilized in dealing with this issue.

Sexual Abuse of Wards

(C. §1646, S.1 §2-7E3, S.1400 §1643)

In our initial report, we recommended that this crime, when committed by someone in a supervisory disciplinary official authority over the other person, should be treated as a more serious felony. We support the S.1 provision for doing just that. Otherwise, all three bills are substantially similar.