AN ACT relating to sexual offenses against children.

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AN ACT relating to sexual offenses against children. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 510.040 is amended to read as follows: 3
(1) A person is guilty of rape in the first degree when: 4
(a) He or she engages in sexual intercourse with another person by forcible 5
compulsion; or 6
(b) He or she engages in sexual intercourse with another person who is incapable 7
of consent because he or she: 8
1. Is physically helpless; or 9
2. Is less than twelve (12) years old. 10
(2) Rape in the first degree is a Class B felony unless the victim: 11
(a) Receives a serious physical injury, in which case it is a Class A felony; or 12
(b) Is under twelve (12) years old, in which case it is a capital offense [ is under 13
twelve (12) years old or receives a serious physical injury in which case it is a 14
Class A felony]. 15
Section 2. KRS 510.070 is amended to read as follows: 16
(1) A person is guilty of sodomy in the first degree when: 17
(a) He or she engages in deviate se xual intercourse with another person by 18
forcible compulsion; or 19
(b) He or she engages in deviate sexual intercourse with another person who is 20
incapable of consent because he or she: 21
1. Is physically helpless; or 22
2. Is less than twelve (12) years old. 23
(2) Sodomy in the first degree is a Class B felony unless the victim: 24
(a) Receives a serious physical injury, in which case it is a Class A felony; or 25
(b) Is under twelve (12) years old, in which case it is a capital offense [ is under 26
twelve (12) years old or receives a serious physical injury in which case it is a 27
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Class A felony]. 1
Section 3. KRS 510.110 is amended to read as follows: 2
(1) A person is guilty of sexual abuse in the first degree when: 3
(a) He or she subjects another person to sexual contact by forcible compulsion; or 4
(b) He or she subjects another person to sexual contact who is incapable of 5
consent because he or she: 6
1. Is physically helpless; 7
2. Is less than twelve (12) years old; 8
3. Is mentally incapacitated; or 9
4. Is an individual with an intellectual disability; or 10
(c) Being twenty-one (21) years old or more, he or she: 11
1. Subjects another person who is less than sixteen (16) years old to sexual 12
contact; 13
2. Engages in masturbation in the presence of another pe rson who is less 14
than sixteen (16) years old and knows or has reason to know the other 15
person is present; or 16
3. Engages in masturbation while using the internet, telephone, or other 17
electronic communication device while communicating with a minor 18
who the person knows is less than sixteen (16) years old, and the minor 19
can see or hear the person masturbate; or 20
(d) Being a person in a position of authority or position of special trust, as defined 21
in KRS 532.045, he or she, regardless of his or her age, subjects a minor who 22
is less than eighteen (18) years old, with whom he or she comes into contact 23
as a result of that position, to sexual contact or engages in masturbation in the 24
presence of the minor and knows or has reason to know the minor is present 25
or engages in masturbation while using the internet, telephone, or other 26
electronic communication device while commun icating with a minor who the 27
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person knows is less than sixteen (16) years old, and the minor can see or hear 1
the person masturbate. 2
(2) Sexual abuse in the first degree is a Class D felony, unless the victim is less than 3
twelve (12) years old, in which cas e the offense shall be a capital offense[Class C 4
felony]. 5
Section 4. KRS 532.025 is amended to read as follows: 6
(1) (a) Upon conviction of a defendant in cases where the death penalty may be 7
imposed, a hearing shall be c onducted. In the[such] hearing, the judge shall 8
hear additional evidence in extenuation, mitigation, and aggravation of 9
punishment, including the record of any prior criminal convictions and pleas 10
of guilty or pleas of nolo contendere of the defendant, or the absence of any 11
prior conviction and pleas.[; provided, however, that] Only the[such] evidence 12
in aggravation as the Commonwealth[state] has made known to the defendant 13
prior to his or her trial shall be admissible. Subject to the Kentucky Rules of 14
Evidence, juvenile court records of adjudications of guilt of a child for an 15
offense that would be a felony if committed by an adult shall be admissible in 16
court at any time the child is tried as an adult, or after the child becomes an 17
adult, at any subsequent criminal trial relating to that same person. Juvenile 18
court records made available pursuant to this section may be used for 19
impeachment purposes during a criminal trial and may be used during the 20
sentencing phase of a criminal trial; however, the fact tha t a juvenile has been 21
adjudicated delinquent of an offense that would be a felony if the child had 22
been an adult shall not be used in finding the child to be a persistent felony 23
offender based upon that adjudication. Release of the child's treatment, 24
medical, mental, or psychological records is prohibited unless presented as 25
evidence in Circuit Court. Release of any records resulting from the child's 26
prior abuse and neglect under Title IV -E or IV -B of the Federal Social 27
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Security Act is also prohibited. The judge shall also hear argument by the 1
defendant or his or her counsel and the prosecuting attorney, as provided by 2
law, regarding the punishment to be imposed. The prosecuting attorney shall 3
open and the defendant shall conclude the argument. In cases in w hich the 4
death penalty may be imposed, the judge when sitting without a jury shall 5
follow the additional procedure provided in subsection (2) of this section. 6
Upon the conclusion of the evidence and arguments, the judge shall impose 7
the sentence or shall r ecess the trial for the purpose of taking the sentence 8
within the limits prescribed by law. If the trial court is reversed on appeal 9
because of error only in the presentence hearing, the new trial which may be 10
ordered shall apply only to the issue of punishment. 11
(b) In all cases in which the death penalty may be imposed and which are tried by 12
a jury, upon a return of a verdict of guilty by the jury, the court shall resume 13
the trial and conduct a presentence hearing before the jury. The[Such] hearing 14
shall b e conducted in the same manner as presentence hearings conducted 15
before the judge as provided in paragraph (a) of this subsection, including the 16
record of any prior criminal convictions and pleas of guilty or pleas of nolo 17
contendere of the defendant. Upon the conclusion of the evidence and 18
arguments, the judge shall give the jury appropriate instructions, and the jury 19
shall retire to determine whether any mitigating or aggravating circumstances, 20
as defined in subsection (2) of this section, exist and to recommend a sentence 21
for the defendant. Upon the findings of the jury, the judge shall fix a sentence 22
within the limits prescribed by law. 23
(2) In all cases of offenses for which the death penalty may be authorized, the judge 24
shall consider, or include in his or her instructions to the jury for it to consider, any 25
mitigating circumstances or aggravating circumstances otherwise authorized by law 26
and any of the following statutory aggravating or mitigating circumstances which 27
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may be supported by the evidence: 1
(a) Aggravating circumstances: 2
1. The offense of murder or kidnapping was committed by a person with a 3
prior record of conviction for a capital offense, or the offense of murder 4
was committed by a person who has a substantial history of serious 5
assaultive criminal convictions; 6
2. The offense of murder or kidnapping was committed while the offender 7
was engaged in the commission of arson in the first degree, robbery in 8
the first degree, burglary in the first degree, rape in the first degree, or 9
sodomy in the first degree; 10
3. The offender by his or her act of murder, armed robbery, or kidnapping 11
knowingly created a great risk of death to more than one (1) person in a 12
public place by means of a weapon of mass destruction, weapon, or 13
other device which would normal ly be hazardous to the lives of more 14
than one (1) person; 15
4. The offender committed the offense of murder for himself, herself, or 16
another, for the purpose of receiving money or any other thing of 17
monetary value, or for other profit; 18
5. The offense of murd er was committed by a person who was a prisoner 19
and the victim was a prison employee engaged at the time of the act in 20
the performance of his or her duties; 21
6. The offender's act or acts of killing were intentional and resulted in 22
multiple deaths; 23
7. The offender's act of killing was intentional and the victim was: 24
a. A state or local public official; or 25
b. A first responder, as defined in KRS 507.070; 26
8. The offender murdered the victim when an emergency protective order 27
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or a domestic violence order was in effect, or when any other order 1
designed to protect the victim from the offender, such as an order issued 2
as a condition of a bond, conditional release, probation, parole, or 3
pretrial diversion, was in effect;[ and] 4
9. The offender's act of killing was in tentional and resulted in the death of 5
a child under twelve (12) years old; and 6
10. The offense of rape in the first degree, sodomy in the first degree, or 7
sexual abuse in the first degree was committed against a child under 8
twelve (12) years old. 9
(b) Mitigating circumstances: 10
1. The defendant has no significant history of prior criminal activity; 11
2. The capital offense was committed while the defendant was under the 12
influence of extreme mental or emotional disturbance even though the 13
influence of extreme mental or emotional disturbance is not sufficient to 14
constitute a defense to the crime; 15
3. The victim was a participant in the defendant's criminal conduct or 16
consented to the criminal act; 17
4. The capital offense was committed under circumstances which the 18
defendant believed to provide a moral justification or extenuation for his 19
or her conduct even though the circumstances which the defendant 20
believed to provide a moral justification or extenuation for his or her 21
conduct are not sufficient to constitute a defense to the crime; 22
5. The defendant was an accomplice in a capital offense committed by 23
another person and his or her participation in the capital offense was 24
relatively minor; 25
6. The defendant acted under duress or under the domination of another 26
person even though the duress or the domination of another person is not 27
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sufficient to constitute a defense to the crime; 1
7. At the time of the capital offense, the capacity of the defenda nt to 2
appreciate the criminality of his or her conduct to the requirements of 3
law was impaired as a result of mental illness or an intellectual disability 4
or intoxication even though the impairment of the capacity of the 5
defendant to appreciate the crimina lity of his or her conduct or to 6
conform the conduct to the requirements of law is insufficient to 7
constitute a defense to the crime; and 8
8. The youth of the defendant at the time of the crime. 9
(3) The instructions as determined by the trial judge to be wa rranted by the evidence or 10
as required by KRS 532.030(4) shall be given in charge and in writing to the jury 11
for its deliberation. The jury, if its verdict be a recommendation of death, or 12
imprisonment for life without benefit of probation or parole, or im prisonment for 13
life without benefit of probation or parole until the defendant has served a minimum 14
of twenty-five (25) years of his or her sentence, shall designate in writing, signed by 15
the foreman of the jury, the aggravating circumstance or circumstanc es which it 16
found beyond a reasonable doubt. In nonjury cases, the judge shall make such 17
designation. In all cases unless at least one (1) of the statutory aggravating 18
circumstances enumerated in subsection (2) of this section is so found, the death 19
penalty, or imprisonment for life without benefit of probation or parole, or the 20
sentence to imprisonment for life without benefit of probation or parole until the 21
defendant has served a minimum of twenty -five (25) years of his or her sentence, 22
shall not be imposed. 23