SB272 By Senators Stutts, Melson, Albritton, and Glover RFD Judiciary Rd 1 18-MAR-15

SYNOPSIS: Under existing law, sodomy in the second degree requires both lack of consent due to mental defect and that the perpetrator be more than 16 and the victim be under 16 years of age, but older than 12 years of age. Under existing law, sodomy in the first degree requires forcible compulsion or that the victim possess a mental defect or be physically helpless, or the perpetrator be more than 16 years of age and the victim less than 12 years of age. Under existing law, a person under age 16 is incapable of consent.

Under existing law, one circumstance in which a person commits the crime of sexual misconduct is when he or she engages in deviate sexual intercourse with another person under circumstances not covered by sodomy in the first degree or sodomy in the second degree, and consent is not a defense to prosecution under this circumstance regardless of the age of either party. This provision of the existing sexual misconduct law was declared unconstitutional by the Alabama Court of Civil Appeals in Williams v. Dallas County.

This bill would revise the sexual misconduct law to require lack of consent or obtaining consent through the use of fraud or artifice.

This bill also would create the crimes of rape in the third degree, sodomy in the third degree, and sexual abuse in the third degree to apply to circumstances where the perpetrator of the crime is less than 16 years of age and the victim less than 12.

This bill would also add rape in the third degree, sodomy in the third degree, and sexual abuse in the third degree to the list of offenses defined by the Sex Offender Registration and Notification Act as sex offenses.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to various sex crimes; to amend Sections 13A-6-65, 13A-6-70, 15-20A-5, and 15-20A-6, Code of Alabama 1975; to require as an element of deviate sexual intercourse that the act occur with lack of consent or consent obtained through fraud or artifice; to create the crimes of rape in the third degree, sodomy in the third degree, and sexual abuse in the third degree to apply where the perpetrator is less than 16 years of age and the victim less than 12; to provide further for the definition of sex offense; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 13A-6-65, 13A-6-70, 15-20A-5, and 15-20A-6, Code of Alabama 1975, are amended to read as follows:

§13A-6-65.

"(a) A person commits the crime of sexual misconduct if:

"(1) Being a male, he He or she engages in sexual intercourse with a female a person of the opposite sex without her the consent of that person, under circumstances other than those covered by Sections 13A-6-61 and 13A-6-62; or with his or her consent where consent was obtained by the use of any fraud or artifice; or

"(2) Being a female, she engages in sexual intercourse with a male without his consent; or

"(3)(2) He or she engages in deviate sexual intercourse with another person without his or her consent under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64 or with his or her consent where consent was obtained by the use of any fraud or artifice. Consent is no defense to a prosecution under this subdivision.

"(b) Sexual misconduct is a Class A misdemeanor.

§13A-6-70.

"(a) Whether or not specifically stated, it is an element of every offense defined in this article, with the exception of subdivision (a)(3) of Section 13A-6-65, that the sexual act was committed without consent of the victim.

"(b) Lack of consent results from:

"(1) Forcible compulsion; or

"(2) Incapacity to consent; or

"(3) If the offense charged is sexual abuse, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct.

"(c) A person is deemed incapable of consent if he is:

"(1) Less than 16 years old; or

"(2) Mentally defective; or

"(3) Mentally incapacitated; or

"(4) Physically helpless.

§15-20A-5.

"For the purposes of this chapter, a sex offense includes any of the following offenses:

"(1) Rape in the first degree, as provided by Section 13A-6-61.

"(2) Rape in the second degree, as provided by Section 13A-6-62.

"(3) Rape in the third degree, as provided by Section 2 of the act adding this amendatory language.

"(3)(4) Sodomy in the first degree, as provided by Section 13A-6-63.

"(4)(5) Sodomy in the second degree, as provided by Section 13A-6-64.

"(6) Sodomy in the third degree, as provided by Section 3 of the act adding this amendatory language.

"(5)(7) Sexual misconduct, as provided by Section 13A-6-65, provided that on a first conviction or adjudication the sex offender is only subject to registration and verification pursuant to this chapter. On a second or subsequent conviction or adjudication of a sex offense, if the second or subsequent conviction or adjudication does not arise out of the same set of facts and circumstances as the first conviction or adjudication of a sex offense, the sex offender shall comply with all requirements of this chapter. The sentencing court may exempt from this chapter a juvenile sex offender adjudicated delinquent of sexual misconduct.

"(6)(8) Sexual torture, as provided by Section 13A-6-65.1.

"(7)(9) Sexual abuse in the first degree, as provided by Section 13A-6-66.

"(8)(10) Sexual abuse in the second degree, as provided by Section 13A-6-67.

"(11) Sexual abuse in the third degree, as provided by Section 4 of the act adding this amendatory language. The sentencing court may exempt from this chapter or reduce the registration period pursuant to subsection (c) of Section 15-20A-28 of a juvenile sex offender adjudicated delinquent on sexual abuse in the third degree.

"(9)(12) Indecent exposure, as provided by Section 13A-6-68, provided that on a first conviction or adjudication of a sex offense, the sex offender is only subject to registration and verification pursuant to this chapter. On a second or subsequent conviction or adjudication of a sex offense, if the second or subsequent conviction or adjudication does not arise out of the same set of facts and circumstances as the first conviction or adjudication, the sex offender shall comply with all requirements of this chapter. The sentencing court may exempt from this act a juvenile sex offender adjudicated delinquent of indecent exposure.

"(10)(13) Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes, as provided by Section 13A-6-69.

"(11)(14) Sexual abuse of a child less than 12 years old, as provided by Section 13A-6-69.1.

"(12)(15) Promoting prostitution in the first degree, as provided by Section 13A-12-111.

"(13)(16) Promoting prostitution in the second degree, as provided by Section 13A-12-112.

"(14)(17) Violation of the Alabama Child Pornography Act, as provided by Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197.

"(15)(18) Unlawful imprisonment in the first degree, as provided by Section 13A-6-41, if the victim of the offense is a minor, and the record of adjudication or conviction reflects the intent of the unlawful imprisonment was to abuse the minor sexually.

"(16)(19) Unlawful imprisonment in the second degree, as provided by Section 13A-6-42, if the victim of the offense is a minor, and the record of adjudication or conviction reflects the intent of the unlawful imprisonment was to abuse the minor sexually.

"(17)(20) Kidnapping in the first degree, as provided by subdivision (4) of subsection (a) of Section 13A-6-43, if the intent of the abduction is to violate or abuse the victim sexually.

"(18)(21) Kidnapping of a minor, except by a parent, guardian, or custodian, as provided by Section 13A-6-43 or 13A-6-44.

"(19)(22) Incest, as provided by Section 13A-13-3.

"(20)(23) Transmitting obscene material to a child by computer, as provided by Section 13A-6-111.

"(21)(24) School employee engaging in a sex act or deviant sexual intercourse with a student, as provided by Section 13A-6-81.

"(22)(25) School employee having sexual contact with a student, as provided by Section 13A-6-82.

"(23)(26) Facilitating solicitation of unlawful sexual conduct with a child, as provided by Section 13A-6-121.

"(24)(27) Electronic solicitation of a child, as provided by Section 13A-6-122.

"(25)(28) Facilitating the on-line solicitation of a child, as provided by Section 13A-6-123.

"(26)(29) Traveling to meet a child for an unlawful sex act, as provided by Section 13A-6-124.

"(27)(30) Facilitating the travel of a child for an unlawful sex act, as provided by Section 13A-6-125.

"(28)(31) Human trafficking in the first degree, as provided by Section 13A-6-152, provided that the offense involves sexual servitude.

"(29)(32) Human trafficking in the second degree, as provided by Section 13A-6-153, provided that the offense involves sexual servitude.

"(30)(33) Custodial sexual misconduct, as provided by Section 14-11-31.

"(31)(34) Any offense which is the same as or equivalent to any offense set forth above as the same existed and was defined under the laws of this state existing at the time of such conviction, specifically including, but not limited to, crime against nature, as provided by Section 13-1-110; rape, as provided by Sections 13-1-130 and 13-1-131; carnal knowledge of a woman or girl, as provided by Sections 13-1-132 through 13-1-135, or attempting to do so, as provided by Section 13-1-136; indecent molestation of children, as defined and provided by Section 13-1-113; indecent exposure, as provided by Section 13-1-111; incest, as provided by Section 13-8-3; offenses relative to obscene prints and literature, as provided by Sections 13-7-160 through 13-7-175, inclusive; employing, harboring, procuring or using a girl over 10 and under 18 years of age for the purpose of prostitution or sexual intercourse, as provided by Section 13-7-1; seduction, as defined and provided by Section 13-1-112; a male person peeping into a room occupied by a female, as provided by Section 13-6-6; assault with intent to ravish, as provided by Section 13-1-46; and soliciting a child by computer, as provided by Section 13A-6-110.

"(32)(35) Any solicitation, attempt, or conspiracy to commit any of the offenses listed in subdivisions (1) to (31), inclusive.

"(33)(36) Any crime committed in Alabama or any other state, the District of Columbia, any United States territory, or a federal, military, Indian, or foreign country jurisdiction which, if it had been committed in this state under the current provisions of law, would constitute an offense listed in subdivisions (1) to (32) (35), inclusive.

"(34)(37) Any offense specified by Title I of the federal Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248, the Sex Offender Registration and Notification Act (SORNA)).

"(35)(38) Any crime committed in another state, the District of Columbia, any United States territory, or a federal, military, Indian, or foreign country jurisdiction if that jurisdiction also requires that anyone convicted of that crime register as a sex offender in that jurisdiction.

"(36)(39) Any offender determined in any jurisdiction to be a sex offender shall be considered a sex offender in this state.

"(37)(40) The foregoing notwithstanding, any crime committed in any jurisdiction which, irrespective of the specific description or statutory elements thereof, is in any way characterized or known as rape, carnal knowledge, sodomy, sexual assault, sexual battery, criminal sexual conduct, criminal sexual contact, sexual abuse, continuous sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking indecent liberties with a child, molestation of a child, criminal sexual misconduct, or video voyeurism, or there has been a finding of sexual motivation.

"(38)(41) Any crime not listed in this section wherein the underlying felony is an element of the offense and listed in subdivisions (1) to (37) (40), inclusive.

"(39)(42) Any other offense not provided for in this section wherein there is a finding of sexual motivation as provided by Section 15-20A-6.

§15-20A-6.

"(a)(1) The indictment, count in the indictment, information, complaint, or warrant charging the offense may include a specification of sexual motivation or the prosecuting attorney may file an allegation of sexual motivation in any criminal case classified as a felony or Class A misdemeanor if sufficient admissible evidence exists that would justify a finding of sexual motivation by a reasonable and objective finder of fact.

"(2) If a specification is included in the indictment, count in the indictment, information, complaint, or warrant charging the offense the specification shall be stated at the end of the body of the indictment, count in the indictment, information, complaint, or warrant and shall be in substantially the following form: "SPECIFICATION or SPECIFICATION TO THE FIRST COUNT. The Grand Jurors (or insert appropriate name) further find and specify that the offender committed the offense with a sexual motivation."

"(3) If the prosecuting attorney files an allegation of sexual motivation, it shall be filed within a reasonable time after indictment to give sufficient notice to the defendant.

"(b) If the indictment, count of the indictment, information, complaint, or warrant charging the offense incudes a specification of sexual motivation or if the prosecuting attorney files an allegation of sexual motivation, the state shall prove beyond a reasonable doubt that the defendant committed the offense with a sexual motivation.

"(c) The court shall make a written finding of fact, to be made part of the record upon conviction or adjudication as a youthful offender, of whether or not a sexual motivation was present at the time of the commission of the offense unless the defendant has a trial by jury.

"(d) If a defendant has a trial by jury, the jury, if it finds the defendant guilty, shall also find a special verdict as to whether or not the defendant committed the crime with a sexual motivation.

"(e) If there is a finding of sexual motivation, the finding shall be made part of the record of conviction or adjudication.

"(f) For purposes of this section, sexual motivation means that one of the purposes for which the defendant committed the crime was for the purpose of the sexual gratification of the defendant.

"(g) This section shall not apply to sex offenses as defined in subdivisions (1) to (38) (41), inclusive, of Section 15-20A-5."

Section 2. (a) A person commits the crime of rape in the third degree if, being at least 12 years old, but less than 16 years old, he or she engages in sexual intercourse with another person less than 12 years old.

(b) Rape in the third degree is a Class A misdemeanor.

Section 3. (a) A person commits the crime of sodomy in the third degree if, being at least 12 years old, but less than 16 years old, he or she engages in deviate sexual intercourse with another person less than 12 years old.

(b) Sodomy in the third degree is a Class A misdemeanor.

Section 4. (a) A person commits the crime of sexual abuse in the third degree if, being at least 12 years old, but less than 16 years old, he or she engages in sexual contact with another person less than 12 years old and more than two years younger than the person who is at least 12 years old but less than 16 years old.

(b) Sexual abuse in the third degree is a Class A misdemeanor.

Section 5. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 6. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Sex Crimes

Children

Rape

Sodomy

Sexual Abuse

Sexual Misconduct

Code Amended