00 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5 01 "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the 02 code of military justice; relating to consent; relating to the testing of sexual assault 03 examination kits; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 11.41.410(a) is amended to read: 06 (a) An offender commits the crime of sexual assault in the first degree if 07 (1) the offender engages in sexual penetration with another person 08 without consent of that person; 09 (2) the offender attempts to engage in sexual penetration with another 10 person without consent of that person and causes serious physical injury to that 11 person; 12 (3) the offender engages in sexual penetration with another person 13 (A) who the offender knows is mentally incapable; and 14 (B) who is in the offender's care 01 (i) by authority of law; or 02 (ii) in a facility or program that is required by law to be 03 licensed by the state; [OR] 04 (4) the offender engages in sexual penetration with a person who the 05 offender knows is unaware that a sexual act is being committed and 06 (A) the offender is a health care worker; and 07 (B) the offense takes place during the course of professional 08 treatment of the victim; or 09 (5) the offender engages in sexual penetration with a person who is 10 induced to believe by artifice, pretense, or concealment that the offender is 11 another person. 12 * Sec. 2. AS 11.41.420(a) is amended to read: 13 (a) An offender commits the crime of sexual assault in the second degree if 14 (1) the offender engages in sexual contact with another person without 15 consent of that person; 16 (2) the offender engages in sexual contact with a person 17 (A) who the offender knows is mentally incapable; and 18 (B) who is in the offender's care 19 (i) by authority of law; or 20 (ii) in a facility or program that is required by law to be 21 licensed by the state; 22 (3) the offender engages in sexual penetration with a person who is 23 (A) mentally incapable; 24 (B) incapacitated; or 25 (C) unaware that a sexual act is being committed; [OR] 26 (4) the offender engages in sexual contact with a person who the 27 offender knows is unaware that a sexual act is being committed and 28 (A) the offender is a health care worker; and 29 (B) the offense takes place during the course of professional 30 treatment of the victim; or 31 (5) the offender engages in sexual contact with a person who is 01 induced to believe by artifice, pretense, or concealment that the offender is 02 another person. 03 * Sec. 3. AS 11.41.434(a) is amended to read: 04 (a) An offender commits the crime of sexual abuse of a minor in the first 05 degree if 06 (1) being 16 years of age or older, the offender engages in sexual 07 penetration with a person who is under 13 years of age or aids, induces, causes, or 08 encourages a person who is under 13 years of age to engage in sexual penetration with 09 another person; 10 (2) being 18 years of age or older, the offender engages in sexual 11 penetration with a person who is under 18 years of age, and the offender is the victim's 12 natural parent, stepparent, adopted parent, or legal guardian; [OR] 13 (3) being 18 years of age or older, the offender engages in sexual 14 penetration with a person who is under 16 years of age, and 15 (A) the victim at the time of the offense is residing in the same 16 household as the offender and the offender has authority over the victim; or 17 (B) the offender occupies a position of authority in relation to 18 the victim; or 19 (4) being 18 years of age or older, the offender engages in sexual 20 penetration with a person who is 13, 14, 15, 16, or 17 years of age and at least 10 21 years younger than the offender, or aids, induces, causes, or encourages a person 22 who is 13, 14, 15, 16, or 17 years of age and at least 10 years younger than the 23 offender to engage in sexual penetration with another person. 24 * Sec. 4. AS 11.41.436(a) is amended to read: 25 (a) An offender commits the crime of sexual abuse of a minor in the second 26 degree if, 27 (1) being 17 years of age or older, the offender engages in sexual 28 penetration with a person who is 13, 14, or 15 years of age and at least four years, but 29 not more than 10 years, younger than the offender, or aids, induces, causes, or 30 encourages a person who is 13, 14, or 15 years of age and at least four years, but not 31 more than 10 years, younger than the offender to engage in sexual penetration with 01 another person; 02 (2) being 16 years of age or older, the offender engages in sexual 03 contact with a person who is under 13 years of age or aids, induces, causes, or 04 encourages a person under 13 years of age to engage in sexual contact with another 05 person; 06 (3) being 18 years of age or older, the offender engages in sexual 07 contact with a person who is under 18 years of age, and the offender is the victim's 08 natural parent, stepparent, adopted parent, or legal guardian; 09 (4) being 16 years of age or older, the offender aids, induces, causes, 10 or encourages a person who is under 16 years of age to engage in conduct described in 11 AS 11.41.455(a)(2) - (6); 12 (5) being 18 years of age or older, the offender engages in sexual 13 contact with a person who is under 16 years of age, and 14 (A) the victim at the time of the offense is residing in the same 15 household as the offender and the offender has authority over the victim; or 16 (B) the offender occupies a position of authority in relation to 17 the victim; 18 (6) being 18 years of age or older, the offender engages in sexual 19 penetration with a person who is 16 or 17 years of age and at least three years younger 20 than the offender, and the offender occupies a position of authority in relation to the 21 victim; [OR] 22 (7) being under 16 years of age, the offender engages in sexual 23 penetration with a person who is under 13 years of age and at least three years younger 24 than the offender; or 25 (8) being 18 years of age or older, the offender engages in sexual 26 contact with a person who is 13, 14, 15, 16, or 17 years of age and at least 10 years 27 younger than the offender, or aids, induces, causes, or encourages a person who 28 is 13, 14, 15, 16, or 17 years of age and at least 10 years younger than the offender 29 to engage in sexual contact with another person. 30 * Sec. 5. AS 11.41.445 is amended by adding a new subsection to read: 31 (c) In a prosecution under AS 11.41.410 - 11.41.440, where consent is at 01 issue, 02 (1) an expression of lack of consent through words or conduct means 03 there is no consent; lack of verbal or physical resistance or submission resulting from 04 the use of force, threat of force, or placing another person in fear may not constitute 05 consent; a current or previous dating, social, or sexual relationship by itself or the 06 manner of dress of the person involved with the defendant in the conduct at issue may 07 not constitute consent; 08 (2) a person cannot consent to force causing or likely to cause death or 09 serious physical injury or to being rendered unconscious; a person cannot consent 10 while under threat or fear or under circumstances where the person is fraudulently 11 made to believe that the sexual act serves a professional purpose; in this paragraph, 12 "professional purpose" means an act the defendant has represented as a necessary part 13 or component of a provided service, part of the routine course of a procedure, or a 14 component of the defendant's profession that would occur if a person sought services 15 from another practitioner in the same field as the defendant; 16 (3) lack of consent may be inferred based on the circumstances of the 17 offense; the surrounding circumstances shall be considered in determining whether a 18 person gave consent or whether a person did not resist or ceased to resist only because 19 of another person's actions. 20 * Sec. 6. AS 11.41.470 is amended by adding a new paragraph to read: 21 (9) "consent" means a freely given, reversible agreement specific to 22 the conduct at issue; in this paragraph, "freely given" means agreement to cooperate in 23 the act was positively expressed by word or action. 24 * Sec. 7. AS 11.56.765(c) is amended by adding a new paragraph to read: 25 (5) "consent" has the meaning given in AS 11.41.470. 26 * Sec. 8. AS 11.56.767(c) is amended by adding a new paragraph to read: 27 (5) "consent" has the meaning given in AS 11.41.470. 28 * Sec. 9. AS 26.05.900(e) is amended by adding a new paragraph to read: 29 (9) "consent" has the meaning given in AS 26.05.890(h). 30 * Sec. 10. AS 44.41.065(a) is amended to read: 31 (a) When a law enforcement agency collects a sexual assault examination kit 01 under AS 18.68.010, the agency shall 02 (1) within 30 days after the agency collects the sexual assault 03 examination kit, send the sexual assault examination kit to an accredited laboratory in 04 coordination with the Department of Public Safety or a laboratory operated by the 05 Department of Public Safety; 06 (2) ensure that the laboratory to which the sexual assault examination 07 kit is sent under (1) of this subsection conducts a serological or DNA test on the 08 sexual assault examination kit within six months [ONE YEAR] after the laboratory 09 receives the sexual assault examination kit; and 10 (3) within two weeks after the laboratory that receives the sexual 11 assault examination kit under (1) of this subsection completes serological or DNA 12 testing, make a reasonable effort to notify the victim from whom the sexual assault 13 examination kit was collected that the sexual assault examination kit has been tested. 14 * Sec. 11. AS 11.41.470(8); AS 11.56.765(c)(4), 11.56.767(c)(4); and AS 26.05.900(e)(8) 15 are repealed. 16 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 APPLICABILITY. AS 11.41.410(a), as amended by sec. 1 of this Act, 19 AS 11.41.420(a), as amended by sec. 2 of this Act, AS 11.41.434(a), as amended by sec. 3 of 20 this Act, AS 11.41.436(a), as amended by sec. 4 of this Act, AS 11.41.445(c), enacted by sec. 21 5 of this Act, AS 11.41.470, as amended by sec. 6 of this Act, AS 11.56.765(c), as amended 22 by sec. 7 of this Act, AS 11.56.767(c), as amended by sec. 8 of this Act, AS 26.05.900(e), as 23 amended by sec. 9 of this Act, and the repeals of AS 11.41.470(8), AS 11.56.765(c)(4), 24 AS 11.56.767(c)(4), and AS 26.05.900(e)(8) by sec. 11 of this Act apply to offenses 25 committed on or after the effective date of secs. 1 - 9 and 11 of this Act. 26 * Sec. 13. Section 10 of this Act takes effect July 1, 2023.