2007 LEGISLATIVE SESSION

Kentucky House Bill 438

INTRODUCED: FEBRUARY 13, 2007
SPONSOR: Rep. Brandon Spencer (D-Prestonburg)
DRAFT REQUEST: BR 1638
INITIAL COMMITTEE ASSIGNMENT: House Judiciary
COMPANION: none identified

(COMMITTEE SUBSTITUTE 03/01/07)

HOUSE COMMITTEE AMENDMENT 02/28/07: "Delete all provisions, except retain the amendment to KRS 510.155 and change that amendment to restore the language relating to peace officers posing as minors, to delete the language relating to forfeiture, and to delete the language enhancing the penalty for the offense."

AN ACT relating to crimes and punishments.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 510.155 is amended to read as follows:

(1) It shall be unlawful for any person to knowingly use a communications system, including computers, computer networks, computer bulletin boards, cellular telephones, or any other electronic means, for the purpose of procuring or promoting the use of a minor, or any individual the person has reason to believe is a minor, or a peace officer posing as a minor if the person believes that the peace officer is a minor or is wanton or reckless in that belief, for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.030, or 530.064(1)(a), or KRS Chapter 531.

(2) No person shall be convicted of this offense and an offense specified in KRS 506.010, 506.030, 506.040, or 506.080 for a single course of conduct intended to consummate in the commission of the same offense with the same minor or individual the person had reason to believe to be a minor or peace officer.

(3) The solicitation of a minor through electronic communication under subsection (1) of this section shall be prima facie evidence of the person's intent to commit the offense even if:

(a) The meeting did not occur; or

(b) The person did not intend for the meeting to occur.

(4) It is a defense to a prosecution under this section that at the time the conduct in subsection (1) of this section was committed the defendant was married to the minor.

(5) A violation of this section is punishable as a Class D felony.

(6) This section shall apply to electronic communications originating within or received within the Commonwealth.

SUMMARY, AS INTRODUCED: "AN ACT relating to crimes and punishments.
Amend KRS 510.010 to define "electronic communications device" and "electronic communications"; amend KRS 506.030 to redefine penalties and add reference to sex offenses; amend KRS 508.140 and 508.150 to add electronic communications as methods of stalking; amend KRS 510.148 to include electronic communication of images as indecent exposure; amend KRS 510.155 to add attempted solicitation, age misrepresentation, and defenses; amend KRS 531.300 to provide for exclusions from material depicting children for bona fide educational, medical, and scientific research with written consent of parent or guardian; amend KRS 531.320 to add parent or person in position of authority as persons engaged in promoting sexual performance by a minor with increased penalty; amend KRS 531.340 to conform."

(TEXT AS FILED 02/13/07)

AN ACT relating to crimes and punishments.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 510.010 is amended to read as follows:

The following definitions apply in this chapter unless the context otherwise requires:

(1) "Deviate sexual intercourse" means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another; or penetration of the anus of one person by a foreign object manipulated by another person. "Deviate sexual intercourse" does not include penetration of the anus by a foreign object in the course of the performance of generally recognized health-care practices;

(2) "Forcible compulsion" means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition;

(3) "Mental illness" means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association;

(4) "Mentally retarded person" means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B;

(5) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon him or her without his or her consent;

(6) "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. "Physically helpless" also includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug;

(7) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party;

(8) "Sexual intercourse" means sexual intercourse in its ordinary sense and includes penetration of the sex organs of one person by a foreign object manipulated by another person. Sexual intercourse occurs upon any penetration, however slight; emission is not required. "Sexual intercourse" does not include penetration of the sex organ by a foreign object in the course of the performance of generally recognized health-care practices;[ and]

(9) "Foreign object" means anything used in commission of a sexual act other than the person of the actor;

(10) "Electronic communications device" means any equipment, instrument, machine, or other device by which communication or information is transmitted, including but not limited to:

(a) Computers, networks, or any part thereof;

(b) Internet and peripheral equipment;

(c) Cameras or other recording devices;

(d) Telephones or other personal communication devices;

(e) Scanners or other copying devices; or

(f) Any device that enables the use of a transmitting device; and

(11) "Electronic communication" means the transmission or transfer of data, images, signals, signs, writings, or other information of any nature, in whole or in part, by means of an electronic communications device.

Section 2. KRS 506.030 is amended to read as follows:

(1) A person is guilty of criminal solicitation when, with the intent of promoting or facilitating the commission of a crime, he or she commands or encourages another person to engage in specific conduct which would constitute that crime or an attempt to commit that crime or which would establish the other's complicity in its commission or attempted commission.

(2) [A criminal solicitation is a:

(a) Class C felony ]When the crime solicited is a violation of KRS Chapter 510, 521.020,[ or] 521.050[;]530.064, or 531.310, the penalty for the solicitation shall be the same as the penalty for actually committing the crime. Otherwise, a criminal solicitation is a:

(a)[(b)] Class B felony when the crime solicited is a Class A felony or capital offense;

(b)[(c)] Class C felony when the crime solicited is a Class B felony;

(c)[(d)] Class A misdemeanor when the crime solicited is a Class C or D felony; and

(d)[(e)] Class B misdemeanor when the crime solicited is a misdemeanor.

Section seq [section]3. KRS 508.140 is amended to read as follows:

(1) A person is guilty of stalking in the first degree:[,]

(a) When he or she intentionally:

1. Stalks another person, including through the use of an electronic communication device or electronic communication as defined in Section 1 of this Act; and

2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:

a. Sexual contact as defined in KRS 510.010;

b. Serious physical injury; or

c. Death; and

(b) 1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or

2. A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or

3. The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor against the same victim or victims; or

4. The act or acts were committed while the defendant had a deadly weapon on or about his or her person.

(2) Stalking in the first degree is a Class D felony.

Section 4. KRS 508.150 is amended to read as follows:

(1) A person is guilty of stalking in the second degree when he or she intentionally:

(a) Stalks another person, including through the use of an electronic communication device or electronic communication as defined in Section 1 of this Act; and

(b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:

1. Sexual contact as defined in KRS 510.010;

2. Physical injury; or

3. Death.

(2) Stalking in the second degree is a Class A misdemeanor.

Section 5. KRS 510.148 is amended to read as follows:

(1) A person is guilty of indecent exposure in the first degree when he or she intentionally exposes his or her genitals, including sending images of his or her genitals by means of an electronic communications device or an electronic communication, as defined in Section 1 of this Act,[under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm] to a person under the age of eighteen (18) years.

(2) The intentional exposure of a person's genitals under subsection (1) of this section shall be prima facie evidence of the intent to commit the offense.

(3) It is a defense to prosecution under this section that at the time the conduct in subsection (1) of this section was committed:

(a) The defendant was married to the minor; or

(b) The defendant was not more than three (3) years older than the minor and the minor consented to the conduct.

(4) Indecent exposure in the first degree is a:

(a) Class A[B] misdemeanor for the first offense; and

(b) Class D felony[A misdemeanor] for a[the] second or sebsequent offense, if it was committed within three (3) years of the first conviction[;

(c) Class D felony for the third offense, if it was committed within three (3) years of the second conviction; and

(d) Class D felony for any subsequent offense, if it was committed within three (3) years of the prior conviction].

Section 6. KRS 510.155 is amended to read as follows:

(1) It shall be unlawful for any person to knowingly use an electronic communication device or an electronic communication, as defined in Section 1 of this Act,[a communications system, including computers, computer networks, computer bulletin boards, cellular telephones, or any other electronic means,] for the purpose of procuring or promoting the use of a minor, or any individual the person has reason to believe is a minor[a peace officer posing as a minor if the person believes that the peace officer is a minor or is wanton or reckless in that belief], for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.030, or 530.064(1)(a), or KRS Chapter 531.

(2) No person shall be convicted of this offense and an offense specified in KRS 506.010, 506.030, 506.040, or 506.080 for a single course of conduct intended to consummate in the commission of the same offense with the same minor or individual believed to be a minor[peace officer].

(3) The solicitation of a minor through electronic communication under subsection (1) of this section shall be prima facie evidence of the person's intent to commit the offense even if:

(a) The meeting did not occur, or

(b) The person did not intend for the meeting to occur.

(4) It is a defense to prosecution under this section that at the time the conduct in subsection (1) of this section was committed:

(a) The defendant was married to the minor; or

(b) The defendant was not more than three (3) years older than the minor and the minor consented to the conduct.

(5) A violation of this section is punishable as:

(a) A Class D felony if the minor involved is less than eighteen (18) years old or the defendant believed that individual to be less than eighteen (18) years old at the time of the offense; and

(b) A Class C felony if the minor involved is less than twelve (12) years old or the defendant believed that individual to be less than twelve (12) years old at the time of the offense.

(6) If the person misrepresents his or her age to the minor, or individual believed to be a minor, for the purpose of using an electronic communications device or electronic communication, as defined in Section 1 of this Act, to engage in, attempt to engage in, or facilitate for another person sexual conduct by a minor, as defined in Section 7 of this Act, the person shall be sentenced to the next higher degree penalty than for the offense for which convicted.

(7) Upon conviction under this section, any personal property of the defendant used in the commission or furtherance of the offense shall be forfeited in accordance with KRS 500.090.

(8) This section shall apply to electronic communications originating within or received within the Commonwealth.

Section 7. KRS 531.300 is amended to read as follows:

(1) As used in KRS 531.080 and 531.310 to 531.370:

(a)[(1)] "Distribute" means to transfer possession of, whether with or without consideration;

(b)[(2)] "Matter" means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials;

(c)[(3)] "Obscene" means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors;

(d)[(4)] "Sexual conduct by a minor" means:

1.[(a)] Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;

2.[(b)] Physical contact with, or willful or intentional exhibition of the genitals, exclusive of exhibition portrayed in matter of a private, family nature not intended for distribution outside of the family;

3.[(c)] Flagellation or excretion for the purpose of sexual stimulation or gratification; or

4.[(d)] The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family;

(e)[(5)] "Performance" means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;

(f)[(6)] "Sexual performance" means any performance or part thereof which includes sexual conduct by a minor; and

(g)[(7)] "Promote" means to prepare, publish, print, procure or manufacture, or to offer or agree to do the same.

(2) This section does not apply to any matter, sexual conduct by a minor, performance, or sexual performance if:

(a) The matter, sexual conduct by a minor, performance, or sexual performance is possessed, distributed, sent, or caused to be sent into this state for sale or distribution, or promoted or presented for a bona fide medical, scientific, educational, governmental, or other similar justification; and

(b) The minor's parent, guardian, or a person in a position of authority or special trust, as defined in KRS 532.045, consents in writing to the photographing or use of the minor in a state of nudity and to the manner in which the matter, sexual conduct by a minor, performance, or sexual performance is used or transferred.

Section 8. KRS 531.320 is amended to read as follows:

(1) A person is guilty of promoting a sexual performance by a minor when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a minor.

(2) Promoting a sexual performance by a minor is:

(a) A Class C felony if the minor involved in the sexual performance is less than eighteen (18) years old at the time the minor engages in the prohibited activity;

(b) A Class B felony if the minor involved in the sexual performance is less than sixteen (16) years old at the time the minor engages in the prohibited activity, or the offender holds a position of authority over the minor as defined in KRS 532.045; and

(c) A Class A felony if the minor involved in the sexual performance incurs physical injury thereby.

Section 9. KRS 531.340 is amended to read as follows:

(1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she:

(a) Sends or causes to be sent into this state for sale or distribution; or

(b) Brings or causes to be brought into this state for sale or distribution; or

(c) In this state, he or she:

1. Exhibits for profit or gain; or

2. Distributes; or

3. Offers to distribute; or

4. Has in his or her possession with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying a sexual performance by a minor.

(2) Any person who has in his or her possession more than one (1) unit of material coming within the provision of KRS 531.300(1)(b)[(2)] shall be rebuttably presumed to have such material in his or her possession with the intent to distribute it.

(3) Distribution of matter portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

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Bill history
02/28/2007 (H) REPORTED FAVORABLY, 1ST READING, TO CALENDAR WITH COMMITTEE SUBSTITUTE
02/23/2007 (H) POSTED IN COMMITTEE
02/14/2007 (H) POSTING WAIVED
02/14/2007 (H) TO JUDICIARY (H)
02/13/2007 (H) INTRODUCED IN HOUSE