HB238

ENROLLED, An Act,

Relating to children; to add Section 13A-6-82.1, to the Code of Alabama 1975, to create the crime of a school employee transmitting obscene material to a student; to amend 13A-6-80, 13A-6-81, 13A-6-82, Code of Alabama 1975, relating to sexual conduct by school employees, to further provide for the crimes of sexual contact or soliciting a sex act with a student; to amend Section 15-25-31, Code of Alabama 1975, to provide for the admissibility of certain out-of-court statements by children under the age of 12 years in certain child abuse and neglect criminal proceedings; to amend Section 26-14-3, Code of Alabama 1975, to reference a specific definition of child abuse and neglect in mandatory child abuse and neglect reporting provisions; to amend Section 38-7-2, Code of Alabama 1975, to revise the definition of day care center; to add Section 38-7-20 to the Code of Alabama 1975, to authorize an individual under 19 years of age with certain credentials to work in a day care center and to count in the staff-child ratio; to provide specific criminal penalties for sexual offenses by foster parents against foster children; to amend Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, to specify that a conviction of a sex offense by a foster parent would subject a defendant to sex offender registration; 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. Section 13A-6-82.1 is added to the Code of Alabama 1975, to read as follows:

§13A-6-82.1.

(a) A person commits the crime of school employee distributing obscene material to a student if he or she is a school employee and distributes or transmits, by any means, obscene matter that depicts sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct to a student.

(b) A school employe employee distributing obscene material to a student is a Class A misdemeanor.Section 2. Sections 13A-6-80, 13A-6-81, 13A-6-82, Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, 15-25-31, 26-14-3, and 38-7-2, Code of Alabama 1975, is amended to read as follows:

§13A-6-80.

"(a) For purposes of this article, school employee includes a teacher, school administrator, student teacher, safety or resource officer, coach, and volunteer adult volunteer in a position of authority or any other school employee who has contact with a student in his or her official capacity as a school employee.

(b) For purposes of this article, a "student" is defined as any person under the age of 19 years enrolled or attending classes in a licensed or accredited public, private, or church school that offers instruction in grades K-12, regardless of whether school is in session.

§13A-6-81.

"(a) A person commits the crime of a school employee engaging in a sex act or deviant sexual intercourse with a student under the age of 19 years under the age of 19 years if he or she is a school employee and engages in a sex act sexual intercourse as defined by Section 13A-6-60(1) or deviant sexual intercourse as defined by 13A-6-60(2) with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this section.

"(b) As used in this section, sex act means sexual intercourse with any penetration, however slight; emission is not required.

"(c) As used in this section, deviant sexual intercourse means any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

"(d) (b) The crime of a school employee engaging in a sex act or deviant sexual intercourse with a student is a Class B felony.

§13A-6-82.

"(a) A person commits the crime of a school employee having sexual contact with a student under the age of 19 years under the age of 19 years if he or she is a school employee and engaging engages in sexual contact, as defined by Section 13A-6-60(3), with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this section. The crime of a school employee having sexual contact with a student is a Class C felony.

"(b) A person commits the crime of a school employee soliciting a sex act with a student under the age of 19 years if he or she is a school employee and solicits, persuades, encourages, harasses, or entices a student to engage in a sex act including, but not limited to, sexual intercourse, as defined by Section 13A-6-30(1), deviate sexual intercourse, as defined by Section 13A-6-30(2), or sexual contact, as defined by Section 13A-6-30(3). The crime of soliciting a student to perform a sex act is a Class A misdemeanor.

"(b) As used in this section, sexual contact means any touching of the sexual or other intimate parts of a student, done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a student to perform a sex act.

"(c) The crime of a school employee having sexual contact with a student is a Class A misdemeanor.

§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) Sodomy in the first degree, as provided by Section 13A-6-63.

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

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

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

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

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

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

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

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

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

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

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

"(21) School employee engaging in a sex act or deviant sexual intercourse with a student having sexual contact or soliciting a sex act or sexual contact with a student, as provided by Section Sections 13A-6-81 and 13A-6-82.

(22) School employee having sexual contact with a student, as provided by Section 13A-6-82 Foster parent engaging in a sex act, having sexual contact, or soliciting a sex act or sexual contact with a foster child as provided by Section 4 of the act adding this subdivision.

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

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

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

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

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

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

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

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

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

"(33) 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), inclusive.

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

"(37) 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, video voyeurism, or there has been a finding of sexual motivation.

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

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

§15-25-31.

"An out-of-court statement made by a child under 12 years of age at the time of the proceeding statement is made concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.

§26-14-3.

"(a) All hospitals, clinics, sanitariums, doctors, physicians, surgeons, medical examiners, coroners, dentists, osteopaths, optometrists, chiropractors, podiatrists, physical therapists, nurses, public and private K-12 employees, school teachers and officials, peace officers, law enforcement officials, pharmacists, social workers, day care workers or employees, mental health professionals, employees of public and private institutions of postsecondary and higher education, members of the clergy as defined in Rule 505 of the Alabama Rules of Evidence, or any other person called upon to render aid or medical assistance to any child, when the child is known or suspected to be a victim of child abuse or neglect, shall be required to report orally, either by telephone or direct communication immediately, and shall be followed by a written report, to a duly constituted authority.

"(b) When an initial report is made to a law enforcement official, the official subsequently shall inform the Department of Human Resources of the report so that the department can carry out its responsibility to provide protective services when deemed appropriate to the respective child or children.

"(c) When the Department of Human Resources receives initial reports of suspected abuse or neglect, as defined in Section 26-14-1, including suspected abuse or neglect involving discipline or corporal punishment committed in a public or private school or suspected abuse or neglect in a state-operated child residential facility, the Department of Human Resources shall transmit a copy of school reports to the law enforcement agency and residential facility reports to the law enforcement agency and the operating state agency which shall conduct the investigation. When the investigation is completed, a written report of the completed investigation shall contain the information required by the state Department of Human Resources which shall be submitted by the law enforcement agency or the state agency to the county department of human resources for entry into the state's central registry.

"(d) Nothing in this chapter shall preclude interagency agreements between departments of human resources, law enforcement, and any other state agencies on procedures for investigating reports of suspected child abuse and neglect to provide for departments of human resources to assist law enforcement and other state agencies in these investigations.

"(e) Any provision of this section to the contrary notwithstanding, if any agency or authority investigates any report pursuant to this section and the report does not result in a conviction, the agency or authority shall expunge any record of the information or report and any data developed from the record.

"(f) Subsection (a) to the contrary notwithstanding, a member of the clergy shall not be required to report information gained solely in a confidential communication privileged pursuant to Rule 505 of the Alabama Rules of Evidence which communication shall continue to be privileged as provided by law.

"(g) Commencing on August 1, 2013, a public or private employer who discharges, suspends, disciplines, or penalizes an employee solely for reporting suspected child abuse or neglect pursuant to this section shall be guilty of a Class C misdemeanor.

§38-7-2.

"Terms used in this chapter, unless the context otherwise requires, have the meanings ascribed to them in this section. When not inconsistent with the context, words used in the present tense include the future, words in the singular number include the plural number, and words in the plural number include the singular number, and the word "shall" is always mandatory and not merely directory:

"(1) CHILD. Any person under 19 years of age, a person under the continuing jurisdiction of the juvenile court pursuant to Section 12-15-32 12-15-117, or a person under 21 years of age in foster care as defined by the Department of Human Resources.

"(2) CHILD-CARE INSTITUTION or INSTITUTION FOR CHILD CARE. A child-care facility where more than 10 children are received and maintained for the purpose of providing them with care or training or both, or transitional living program services, but does not include:

"a. Any institution for child care which is under the ownership or control, or both, of the State of Alabama, or which is operated or certified or licensed by another agency or department of the State of Alabama;

"b. Any juvenile detention home established and operated by the State of Alabama;

"c. Any bona fide boarding school in which children are primarily taught branches of education corresponding to those taught in public schools, grades 1 through 12, or taught in public elementary schools, high schools, or both elementary and high schools.

"(3) CHILD-PLACING AGENCY. A public or private child-care facility which receives, places, or arranges for the placement of any child or children in adoptive or foster family homes or other facilities for child care apart from the custody of the child's or children's parents. The term "child-placing agency" includes, but is not limited to, all agencies established and maintained by a municipality or other political subdivision of the State of Alabama to protect, guard, train, or care for children outside their own homes, but does not include any circuit court or juvenile court or any duly appointed juvenile probation officer or youth counselor of the court who receives and places children under an order of the court.

"(4) DAY CARE CENTER. Any child-care facility receiving more than 12 children for daytime care during all or part of a day. The term "day care center" includes, but is not limited to, facilities commonly called "child-care centers," "day nurseries," "nursery schools," "pre-kindergartens," "kindergartens," and "play groups," with or without stated educational purposes. The term further includes, but is not limited to, pre-kindergarten, kindergarten, or nursery schools or other daytime programs operated as a part of a private school and receiving children younger than lawful school age for daytime care for more than four hours a day, with or without stated educational purposes. The term does not include any of the following:

"a. Kindergartens or nursery schools or other daytime programs operated by public elementary systems or secondary level school units or institutions of higher learning.

"b. Kindergartens or nursery schools or other daytime programs, with or without stated educational purposes, operating no more than four hours a day and receiving children younger than lawful school age.

"c. Kindergartens or nursery schools or other daytime programs operated as a part of a private school and receiving children younger than lawful school age for four hours a day or less, with or without stated educational purposes.

"d. Facilities operated for more than four hours a day in connection with a shopping center or service or other similar facility, where transient children are cared for temporarily while parents or custodians of the children are occupied on the premises or are in the immediate vicinity and readily available. The facilities shall meet local and state fire and health requirements.

"e. Any type of day care center that is conducted on federal government premises.

"f. Special activities programs for children of lawful school age including, but not limited to, athletics, crafts instruction and similar activities conducted on an organized and periodic basis by civic, charitable, and governmental organizations provided local and state fire and health requirements are met.

"(5) DAY CARE HOME. A child-care facility which is a family home and which receives not more than six children for care during the day.

"(6) DEPARTMENT. The Department of Human Resources of the State of Alabama.

"(7) FACILITY FOR CHILD CARE or CHILD-CARE FACILITY. A facility established by any person, group of persons, agency, association, or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility, apart from the parents, with or without the transfer of the right of custody, in any facility as defined in this chapter, established and maintained for the care of children.

"(8) FOSTER FAMILY HOME. A child-care facility in a residence of a family where the family receives a child or children, unrelated to that family, for the purpose of providing family care or therapeutic family care and training, or transitional living program services on a full-time basis. The types of foster family homes are defined as follows:

"a. Boarding home. A foster family home wherein the foster family receives a child or children and receives payment for their care. The number of children so received shall not exceed six, unless the children are of common parentage.

"b. Free home. A foster home which does not receive payment for the care of a child or children and which may or may not receive the child or children for the purpose of adoption.

"(9) GROUP DAY CARE HOME. A child-care facility which is a family home and which receives at least seven but no more than 12 children for care during part of the day where there are at least two adults present and supervising the activities.

"(10) GROUP HOME. A child-care facility where at least seven but not more than 10 children are received and maintained for the purpose of providing them with care or training or both, or transitional living program services.

"(11) MATERNITY CENTER. A facility in which any person, agency, or corporation receives or cares for one or more minor pregnant girls, except that the term does not include hospitals.

"(12) NIGHT CARE FACILITY. A child-care facility which is a center or a family home receiving a child or children for care during the night. A "night care facility" is further defined as follows:

"a. Nighttime center. A facility which is established to receive more than 12 children for nighttime care.

"b. Nighttime home. A family home which receives no more than six children for nighttime care.

"c. Group nighttime home. A child-care facility which is a family home which receives at least seven but no more than 12 children for nighttime care and where there are at least two adults present and supervising the activities.

"(13) RELATED. Any of the following relationships by blood, marriage, or adoption: Parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, half brother, half sister, uncle or aunt, and their spouses.

"(14) TRANSITIONAL LIVING FACILITY. A child-care facility or program that is designed to give opportunities to practice independent living skills to eligible persons at least 16 years of age and under 21 years of age in foster care in a variety of residential settings with varying degrees of care and supervision."

Section 3. Section 38-7-20 is added to the Code of Alabama 1975, to read as follows:

§38-7-20.

Nothing in this chapter shall preclude an individual under the age of 19 years who has graduated from a high school with a Child Development Associate Credential from being employed by a day care center and counted in the staff-child ratio, as defined in subdivision (4) of Section 38-7-2.

Section 4. (a) A person commits the crime of engaging in a sex act with a foster child if he or she is a foster parent and engages in sexual intercourse, as defined by Section 13A-6-60(1), or deviant sexual intercourse, as defined by Section 13A-6-60(2) with a foster child under the age of 19 years who is under his or her care or supervision. Engaging in a sex act with a foster child is a Class B felony.

(b) A person commits the crime of engaging in a sexual contact with a foster child if he or she is a foster parent and engages in a sexual contact, pursuant to Section 13A-6-60(3) with a foster child under the age of 19 years who is under his or her care or supervision. Engaging in sexual contact with a foster child is a Class C felony.

(c) A person commits the crime of soliciting a sex act or sexual contact with a foster child if he or she is a foster parent and solicits, persuades, encourages, harasses, or entices a foster child under the age of 19 to engage in a sex act including, but not limited to, sexual intercourse, as defined by Section 13A-6-30(1), deviate sexual intercourse, as defined by Section 13A-6-30(2) or sexual contact, as defined by Section 13A-6-30(3). The crime of soliciting a sex act or sexual contact with a foster child is a Class A misdemeanor.

(d) Consent is not a defense to a charge under subsections (a), (b), or (c).

(e) For the purposes of this section a foster parent is an individual approved or licensed by the Department of Human Resources or other child placing agencies who provides care and supervision to a foster child under the temporary or permanent custody of the department.

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 immediately following its passage and approval by the Governor, or its otherwise becoming law.

Children

Sex Offenses

Schools

Day Care

Foster Parents

Human Resources Department

Crimes and Offenses

Criminal Law and Procedure

Code Added

Code Amended