[Congressional Record Volume 142, Number 141 (Thursday, October 3, 1996)]
[Senate]
[Pages S12376-S12379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        DRUG-INDUCED RAPE PREVENTION AND PUNISHMENT ACT OF 1996

  Mr. LOTT. Mr. President I ask unanimous consent the Senate 
immediately proceed to the consideration of H.R. 4137, a bill to combat 
drug-facilitated crimes of violence, including sexual assaults, which 
is at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 4137) to combat drug-facilitated crimes of 
     violence, including sexual assaults.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill.


                           Amendment No. 5429

                   (Purpose: To propose a substitute)

  Mr. LOTT. Mr. President, Senators Hatch, Biden, and Coverdell have a 
substitute amendment at the desk. I ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Mississippi [Mr. Lott] for Mr. Hatch, for 
     himself, Mr. Biden, and Mr. Coverdell, proposes an amendment 
     numbered 5429.

  The amendment is as follows:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Drug-Induced Rape Prevention 
     and Punishment Act of 1996''.

     SEC. 2. PROVISIONS RELATING TO USE OF A CONTROLLED SUBSTANCE 
                   WITH INTENT TO COMMIT A CRIME OF VIOLENCE.

       (a) Penalties for Distribution.--Section 401(b) of the 
     Controlled Substances Act is amended by adding at the end the 
     following:
       ``(7) Penalties for distribution.--
       ``(A) In general.--Whoever, with intent to commit a crime 
     of violence, as defined in section 16 of title 18, United 
     States Code (including rape), against an individual, violates 
     subsection (a) by distributing a controlled substance to that 
     individual without that individual's knowledge, shall be 
     imprisoned not more than 20 years and fined in accordance 
     with title 18, United States Code.
       ``(B) Definition.--For purposes of this paragraph, the term 
     `without that individual's knowledge' means that the 
     individual is unaware that a substance with the ability to 
     alter that individual's ability to appraise conduct or to 
     decline participation in or communicate unwillingness to 
     participate in conduct is administered to the individual.''.
       (b) Additional Penalties Relating to Flunitrazepam.--
       (1) General penalties.--Section 401 of the Controlled 
     Substances Act (21 U.S.C. 841) is amended--
       (A) in subsection (b)(1)(C), by inserting ``, and
       (B) in subsection (b)(1)(D), by inserting ``or 30 
     milligrams of flunitrazepam,'' after ``schedule III,''.
       (2) Import and export Penalties.--
       (A) Section 1009(a) of the Controlled Substances Import and 
     Export Act (21 U.S.C. 959(a)) is amended by inserting ``or 
     flunitrazepam'' after ``I or II''.
       (B) Section 1010(b)(3) of the Controlled substances Import 
     and Export Act (21 U.S.C. 960(b)) is amended by inserting 
     ``or flunitrazepam,'' after ``I or II,''.
       (C) Section 1010(b)(4) of the Controlled Substance Import 
     and Export Act is amended by inserting ``(except a violation 
     involving flunitrazepam)'' after ``III, IV, or V,''.
       (3) Sentencing guidelines.--
       (A) Amendment of sentencing guidelines.--Pursuant to its 
     authority under section 994 of title 28, United States Code, 
     the United States Sentencing Commission shall review and 
     amend as appropriate the sentencing guidelines for 
     offenses involving flunitrazepam.
       (B) Summary.--The United States Sentencing Commission shall 
     submit to the Congress--
       (i) a summary of its review under subparagraph (A); and
       (ii) an explanation for any amendment to the sentencing 
     guidelines made under subparagraph (A).
       (C) Serious nature of offenses.--In carrying out this 
     paragraph, the United States Sentencing Commission shall 
     ensure that the sentencing guidelines for offenses involving 
     flunitrazepam reflect the serious nature of such offenses.
       (c) Increases Penalties for Unlawful Simple Possession of 
     Flunitrazepam.--Section 404(a) of the Controlled Substances 
     Act (21 U.S.C. 844(a)) is amended by inserting after 
     ``exceeds 1 gram.'' the following: ``Notwithstanding any 
     penalty provided in this subsection, any person convicted 
     under this subsection for the possession of flunitrazepam 
     shall be imprisoned for not more than 3 years, shall be fined 
     as otherwise provided in this section, or both.''

     SEC. 3. STUDY ON RESCHEDULING FLUNITRAZEPAM.

       (a) Study.--The Administrator of the Drug Enforcement 
     Administration shall, in consultation with other Federal and 
     State agencies, as appropriate, conduct a study on the 
     appropriateness and desirability of rescheduling 
     flunitrazepam as a Schedule I controlled substance under the 
     Controlled Substances Act (21 U.S.C. 801 et seq.).
       (b) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the administrator shall submit to the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate the results of the study conducted under 
     subsection (a), together with any recommendations regarding 
     rescheduling of flunitrazepam as a Schedule I controlled 
     substance under the Controlled Substances Act (21 U.S.C. 801 
     et seq.).

     SEC. 4. EDUCATIONAL PROGRAM FOR POLICE DEPARTMENTS.

       The Attorney General may--
       (1) create educational materials regarding the use of 
     controlled substances (as that term is defined in section 102 
     of the Controlled Substances Act) in the furtherance of rapes 
     and sexual assaults; and

[[Page S12377]]

       (2) disseminate those materials to police departments 
     throughout the Unites States.

  Mr. HATCH. Mr. President, the bill we are considering today is a 
substitute offered by Senators Coverdell, Biden and myself to the 
House-passed Drug-Induced Rape Prevention and Punishment Act, H.R. 
4137, authored by my good friend and colleague, Representative Gerry 
Solomon of New York, chairman of the Rules Committee.
  It is my understanding that this amendment has been cleared on both 
sides, and is acceptable to the House, so I am hopeful it can quickly 
win final approval and be sent to the President for signature.
  Mr. President, it is clear to this member that the Congress must 
address the horrible problem of date rape before we adjourn for the 
year. Reports of date rapes appear to be on the rise. These cases are 
not confined to Rohypnol--other drugs have also been implicated--but 
many of the instances brought to our attention do involve ``roofies,'' 
as they are called on the street. These offenses are violent crimes 
against women. I find the situation deplorable.
  Our amendment is a strike back at those who would use controlled 
substances to engage in what can only be considered a most 
reprehensible crime, to sedate, then violate, unsuspecting women. We 
must redouble our efforts to discourage and punish illegal behavior 
that can have such drastic consequences.
  Accordingly, the bill provides new penalties of up to 20 years 
imprisonment, and fines in accordance with Title 18, U.S.C., for 
persons with the intent to commit a crime of violence--including rape--
by distributing any controlled substance to another individual without 
that person's knowledge.
  In addition, additional penalties are also imposed with specific 
reference to flunitrazepam, sold under the trade name Rohypnol. In 
general, these penalties are equivalent to those of Schedule I 
controlled substances, which include the possibility of imprisonment up 
to 20 years for individuals who knowingly or intentionally manufacture, 
distribute, or dispense one gram of flunitrazepam, or 5 years for 30 
milligrams. The bill also enhances penalties for the simple possession 
or illegal importation of flunitrazepam.
  Since many versions of this bill have been proposed, I wanted to take 
this opportunity to review the history of this legislation. As my 
colleagues are aware, on August 2, Senator Hutchinson and I introduced 
S. 2040, the Drug-Induced Rape Prevention Act. Our bill was cosponsored 
by Senators Moseley-Braun and Specter.
  During consideration of the Treasury-Postal appropriations bill, 
Senator Biden offered an amendment to reschedule Rohypnol to schedule I 
of the Controlled Substances Act. Senator Coverdell and I--believing 
that it was inappropriate to reschedule Rohypnol, a drug legally 
marketed in over 60 countries, to a category defined as ``no medical 
use,'' offered a substitute amendment to that bill, neither of which 
had been voted upon when the Senate suspended debate on the Treasury-
Postal bill and subsequently folded it into the omnibus appropriations 
bill.
  On the topic of reschheduling, it is important for my colleagues to 
be aware that Rohypnol is not sold legally in the United States. 
However, it is sold legally overseas. A unilateral effort on the part 
of the United States to reschedule the drug to the category of ``no 
medical use'' could negatively affect the legitimate access to this 
drug oversees. Since schedule I is the most restrictive category, which 
is reserved for the drugs which have a high potential for abuse, drugs 
which have no currently accepted medical use in treatment, and drugs 
for which there is a lack of accepted safety for use under medical 
supervision, I believe it would be improper for Congress to place 
Rohypnol in schedule I. The regulations and controls placed on schedule 
I substances--controls, I might add, which are warranted for drugs 
which fall into this category--effectively remove these substances from 
the health care market.
  The schedule I standards clearly do not apply to Rohypnol, a member 
of the benzodiazepene class, which generally falls within the less 
restrictive schedule IV. Congressional rescheduling--an action seldom 
taken--of this drug would indicate to other countries that the United 
States believes there is no medical use for Rohypnol. In fact, there 
are legitimate medical uses for Rohypnol. So, too, are there legitimate 
medical uses of many other drugs not currently approved for sale in the 
United States. To make any medically accepted drug a schedule I 
substance because it is being used illegally would be a troubling 
precedent for our Nation's health care system. What drugs would be 
next? What other drugs will be put beyond the reach of doctors and 
their patients because Congress chose to act hastily?
  On September 26, the House passed, 421 to 1, H.R. 4137, a compromise 
bill authored by Representative Solomon, which many of us on this side 
of the aisle respected for its tough penalties.
  However, as we encountered with the recently passed bill to curb 
methamphetamine abuse, certain Senators on the Democratic side refused 
to clear any bill with mandatory minimum sentences, and thus we were 
forced to amend the House bill.
  For the record, I continue to prefer mandatory minimum sentences as a 
sure deterrent to crime. However, in this case as with the meth bill, I 
believe it is preferable to yield temporarily on that point in order to 
get a final agreement before adjournment.
  The bill we consider today contains the text of the Hatch/Coverdell 
amendment from September 12, with three provisions taken from the House 
bill. It includes the House language requiring the U.S. Sentencing 
Commission to review and amend the sentencing guidelines for offenses 
involving Rohypnol. It also includes the House provision calling for a 
study on rescheduling of Rohypnol, and an educational program for 
police departments on the use of controlled substances in the 
furtherance of rapes and sexual assaults.
  The substitute is similar to the House-passed measure, in that it 
increases penalties for possession of Rohypnol and use of the drug in 
violent crimes, including rape. It does not, however, reschedule the 
drug, or impose mandatory minimum sentences.
  In closing, Mr. President, I must underscore that the intent of our 
effort is simple: to fortify our arsenal so that law enforcement has 
the tools it needs to fight the heinous crime of date rape. The Federal 
Government must show that it will not tolerate the use of any drug to 
facilitate rape. It is necessary and prudent that the Congress act on 
this important legislation.
  I want to thank my colleagues for their work on this important, 
bipartisan bill. I urge the Senate to pass this important measure.
  Mr. President, I ask unanimous consent that a summary of the 
legislation which passed be printed in the Record.
  There being no objection, the summary was ordered to be printed in 
the Record, as follows:

 Summary of H.R. 4137, the Drug-Induced Rape Prevention and Punishment 
              Act as Passed by the Senate, October 2, 1996

       Short title: The title of the bill is the ``Drug-Induced 
     Rape Prevention and Punishment Act of 1996''.
       Provisions relating to use of any controlled substance with 
     intent to commit a crime of violence: The bill provides new 
     penalties of up to 20 years imprisonment, and fines in 
     accordance with Title 18, U.S.C., for persons who intend to 
     commit a crime of violence (including rape), by distributing 
     a controlled substance to another individual without that 
     individual's knowledge.
       Specific penalties for rohypnol: Additional penalties are 
     also imposed with specific reference to flunitrazepam, sold 
     under the trade name Rohypnol. In general, these penalties 
     are equivalent to those of Schedule I controlled substances, 
     which generally include the possibility of imprisonment up to 
     20 years for individuals who knowingly or intentionally 
     manufacture, distribute, or dispense one gram of 
     flunitrazepam, or up to 5 years for 30 milligrams. [Note: the 
     penalties are higher if the person has a prior conviction or 
     if death or serious bodily injury results from the use of the 
     substance.]
       Penalties for import and export of flunitrazepam: The 
     Controlled Substances Act provision relating to import or 
     export are also amended, so that penalties for violations 
     involving Rohypnol, are equivalent to penalties for Schedule 
     I drugs.
       Sentencing guidelines: The United States Sentencing 
     Commission is directed to review and amend, as appropriate, 
     the sentencing guidelines for offenses involving 
     flunitrazepam so that the guidelines reflect the serious 
     nature of such crimes.
       Simple possession of Rohypnol: A new penalty is added of up 
     to three years' imprisonment, or a fine, or both, for simple 
     possession of Rohypnol.
       Education program for police officers: A new program is 
     established to provide police

[[Page S12378]]

     departments with educational materials on the use of 
     controlled substances during rapes and sexual assaults.
       Study: A Federal/State study on whether Rohypnol should be 
     scheduled in a more restrictive category under the Controlled 
     Substances Act will be submitted to the Congress within six 
     months of the bill's enactment.

  Mr. BIDEN. Mr. President, I rise in support of the substitute 
language offered by myself and Senator Hatch. This substitute is 
offered for a simple reason, the House-passed bill cannot and will not 
pass the Senate. I must also point out that while I obviously support 
the language I am co-sponsoring with Senator Hatch and others, this 
bill leaves a serious shortfall that must be addressed next year.
  This shortfall is the failure of this legislation to take the single 
most important step we can to combat the rise of Rohypnol, the ``date-
rape'' drug--that step is to shift this drug to schedule 1 of the 
Federal Controlled Substances Act. Why is rescheduling so important?
  Rescheduling is important for three simple reasons: First, Federal 
rescheduling triggers increases in State drug law penalties, and since 
we all know that more than 95 percent of all drug cases are prosecuted 
at the State level, not by the Federal Government, it is vitally 
important that we re-schedule. Second, Federal rescheduling to schedule 
1 triggers the toughest Federal penalties. And, third, rescheduling has 
proven to work, in 1984, I worked to reschedule Quaaludes, Congress 
passed the law, and the Quaalude epidemic was greatly reduced and, in 
1990, I worked to re-schedule steroids, Congress passed the law, and 
again a drug epidemic that had been on the rise was reversed.
  Still, despite the fact that this bill does not reschedule Rohypnol, 
I believe that it is important to pass this legislation because it 
takes the necessary and needed step of adding a new Federal offense for 
the crime of using a drug to commit any crime of violence--an offense 
that is punishable by up to 20 years behind bars.
  This bill also calls on the DEA Administrator to make a 
recommendation on rescheduling Rohypnol to the Congress within 180 
days. I am confident that the DEA Administrator will recommend the step 
I have been calling for more than a year--rescheduling Rohypnol to 
schedule 1. The fact is that the DEA Administrator has already formally 
recommended schedule 1 to the Department of Health and Human Services 
which is now beginning the lengthy process of its formal review of the 
recommendation. This is the standard process for an administrative 
rescheduling, and in most cases, I believe it is appropriate--but, when 
we are faced with immediate and clear dangers, I do not believe that it 
is wise for Congress to refuse to take action.
  To offer a few more details about the importance of rescheduling 
Rohypnol, allow me to make a few more points.
  First, rescheduling Rohypnol is the most effective way to get State 
and local law enforcement to focus on Rohypnol--given the limited 
amount of resources for fighting drugs, cops focus on those deemed most 
dangerous and these are the drugs found in schedules 1 and 2.
  Second, and as I have stated, many State drug laws are triggered by 
the Federal Government's scheduling system. The Uniform Controlled 
Substances Act provides that when the Federal Government reschedules a 
drug, the States which have signed this Uniformity Act will 
automatically have their State drug penalties changed to match the 
Federal penalties.

  In other words, without action on our part to reschedule, many States 
will not be able to address this problem until it is too late and 
Rohypnol has already infiltrated their communities.
  Third, I have heard some critics of my rescheduling proposal argue 
that rescheduling is wrong because Rohypnol is a medically accepted 
drug in other parts of the world. In response, I would simply point out 
that in 1984 when Congress rescheduled Quaaludes, they were a medically 
accepted drug right here in the United States.
  What is more, unlike the action taken on Quaaludes--in which Congress 
saw fit to go so far as to ban previously legal sales of the drug in 
this country--the rescheduling of Rohypnol in the United States will 
not hurt medical use here in America because there is no legal use of 
Rohypnol in America now. Doctors cannot prescribe this drug.
  The bottom line is that the Congress will be debating the 
rescheduling issue all over again in 6 months. I regret this delay. I 
abhor this delay. This delay has the potential of leaving more children 
in danger. But, this is the reality of the situation we face because of 
one simple reason--a huge, foreign company that manufactures Rohypnol 
does not want America to reschedule their drug, even though this 
company does not--indeed cannot--sell this drug in America.
  It is just as simple as that, because a company is afraid of losing 
some money, the effort to bring the maximum power of Federal law 
against the date rape drug has been defeated. I think we should take 
the partial step we are taking today, I think it is a positive that the 
Congress has agreed to accept a formal recommendation from the DEA 
Administrator, I believe that will ultimately be persuasive enough to 
gain a majority to support rescheduling, but let no one be under any 
misunderstanding that what we do today is all we should be doing to 
control the epidemic of the date rape drug.
  Mr. HELMS. Mr. President, I am gratified that the U.S. Senate today 
passed S. 1612, a bill I introduced on March 13, 1996, stipulating that 
a 5-year mandatory minimum sentence shall be imposed upon any criminal 
possessing a firearm during and in relation to the commission of a 
violent or drug trafficking crime.
  I'm informed that this bill will be approved by the House this 
afternoon, unless there is strong opposition by a Member of that body. 
If and when signed by the President, it will obviously crack down on 
criminals who possess a gun while committing violent felonies and/or 
drug trafficking offenses. In short, it will ensure that criminals 
possessing a firearm while committing a violent or drug trafficking 
felony shall receive stern and inescapable punishment.
  This is common sense, Mr. President; violent felons who possess 
firearms are more dangerous than those who don't
  This legislation builds upon existing Federal law providing that a 
person who, during a Federal crime of violence and/or drug trafficking 
crime, uses or carries a firearm shall be sentenced to 5 years in 
prison, a law that has been used effectively by Federal prosecutors 
across the country.
  However, a December 1995 U.S. Supreme Court decision undermined the 
efforts of prosecutors to use this statute effectively--the Supreme 
Court's decision, Bailey versus United States, interpreted the law to 
require that a violent felon actively employ a firearm as a 
precondition of receiving an additional 5-year sentence. The Court in 
Bailey held that the firearm must be brandished, fired, or otherwise 
actively used before the additional 5-year sentence may be imposed. So, 
if a criminal merely possesses a firearm, but doesn't fire or otherwise 
use it, he gets off without the additional 5-year penalty.
  Mr. President, this Supreme Court decision posed serious problems for 
law enforcement. It weakened the Federal criminal law and lead to the 
early release of hundreds of violent criminals. Before this Supreme 
Court's error of judgment--in the Bailey versus United States 
decision--armed criminals committing violent or drug trafficking 
felonies were jailed for an additional 5 years, regardless of whether 
they actively employed their weapons.
  But when the Court's decision was announced, hardened criminals 
across America were overjoyed by the prospect of prison doors swinging 
open for them. And sure enough, since the Bailey decision last December 
6, hundreds of criminals have indeed been set free.
  As a result of the Court's decision, any thug who hid a gun under the 
back seat of his car, or who stashed a gun with his drugs, escaped the 
additional 5-year penalty. But in fact, Mr. President, firearms are the 
tools of the trade of most drug traffickers. Weapons clearly facilitate 
the criminal transactions and embolded violent thugs to commit their 
crimes.

  I believe that mere possession of a firearm, during the commission of 
a violent felony--even if the weapon is not actively used--should 
nonetheless be punished--because of the heightened risk of violence 
when firearms are present. In its opinion, the Supreme

[[Page S12379]]

Court observed, ``Had Congress intended possession alone to trigger 
liability * * * it easily could have so provided.'' That, Mr. 
President, is precisely the intent of this legislation--to make clear 
that possession alone does indeed trigger liability.
  So this legislation retains the 5 year mandatory--repeat, mandatory--
sentences for violent armed felons, and it expands the penalty to apply 
in the case of possession. In addition, it directs the United States 
Sentencing Commission to consider strengthening the penalty when a 
criminal discharges a firearm in furtherance of a heinous crime.
  As originally introduced, S. 1612 would have boosted the mandatory 
sentence to 10 years; 20 years if the weapon was discharged; and the 
death penalty or a mandatory life sentence if someone was killed during 
the crime. However, some Senators--perhaps responding to blandishments 
from the lobbyists at A.C.L.U.--objected to heightened mandatory 
sentences. So I scaled them back--reluctantly--and with the leadership 
and expertise of the distinguished Senator from Ohio [Mr. DeWine], this 
essential legislation was passed. Representative Sue Myrick's guidance 
in the House of Representatives also has been indispensable.
  Mr. President, this bill is a necessary and appropriate response to 
the Supreme Court's judicial limitation of the mandatory penalty for 
gun-toting criminals. According to Sentencing Commission statistics, 
more than 9,000 armed violent felons were convicted from April, 1991, 
through October, 1995. In North Carolina alone, this statute was used 
to help imprison over 800 violent criminals. We must strengthen law 
enforcement's ability to use this strong anti-crime provision.
  Fighting crime is, and must be, a top concern in America. It has been 
estimated that one violent crime is committed every 16 seconds in the 
United States. We must fight back with the most severe punishment 
possible for those who terrorize law-abiding citizens. Enactment of 
this legislation removes one of the roadblocks between a savage 
criminal act and swift, certain punishment. It is a necessary step 
toward recommitting our Government and our citizens to a real honest-
to-God war on crime.
  Mr. LOTT. Mr. President, I ask unanimous consent the amendment be 
agreed to, the bill be deemed read a third time and passed, as amended, 
the motion to reconsider be laid upon the table, and any statements 
relating to the bill appear at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 5429) was agreed to.
  The bill (H.R. 4137), as amended, was deemed read for a third time 
and passed.

                          ____________________