00 CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5(JUD) 01 "An Act relating to sexual offenses; relating to the code of military justice; relating to 02 consent; relating to the testing of sexual assault examination kits; and providing for an 03 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 by the use of force or the express or implied threat 09 of force against any person; 10 (2) the offender attempts to engage in sexual penetration with another 11 person without consent of that person and causes serious physical injury to that 12 person; 13 (3) the offender engages in sexual penetration with another person 14 (A) who the offender knows is mentally incapable; and 01 (B) who is in the offender's care 02 (i) by authority of law; or 03 (ii) in a facility or program that is required by law to be 04 licensed by the state; or 05 (4) the offender engages in sexual penetration with a person who the 06 offender knows is unaware that a sexual act is being committed and 07 (A) the offender is a health care worker; and 08 (B) the offense takes place during the course of professional 09 treatment of the victim. 10 * Sec. 2. AS 11.41.420(a) is amended to read: 11 (a) An offender commits the crime of sexual assault in the second degree if 12 (1) the offender engages in sexual contact with another person without 13 consent of that person by the use of force or the express or implied threat of force 14 against any person; 15 (2) the offender engages in sexual contact with a person 16 (A) who the offender knows is mentally incapable; and 17 (B) who is in the offender's care 18 (i) by authority of law; or 19 (ii) in a facility or program that is required by law to be 20 licensed by the state; 21 (3) the offender engages in sexual penetration with a person who is 22 (A) mentally incapable; 23 (B) incapacitated; or 24 (C) unaware that a sexual act is being committed; [OR] 25 (4) the offender engages in sexual contact with a person who the 26 offender knows is unaware that a sexual act is being committed and 27 (A) the offender is a health care worker; and 28 (B) the offense takes place during the course of professional 29 treatment of the victim; or 30 (5) under circumstances not proscribed under AS 11.41.410, the 31 offender engages in sexual penetration with another person without consent of 01 that person. 02 * Sec. 3. AS 11.41.425(a) is amended to read: 03 (a) An offender commits the crime of sexual assault in the third degree if the 04 offender 05 (1) engages in sexual contact with a person who is 06 (A) mentally incapable; 07 (B) incapacitated; or 08 (C) unaware that a sexual act is being committed; 09 (2) while employed in a state correctional facility or other placement 10 designated by the commissioner of corrections for the custody and care of prisoners, 11 engages in sexual penetration with a person who the offender knows is committed to 12 the custody of the Department of Corrections to serve a term of imprisonment or 13 period of temporary commitment; 14 (3) engages in sexual penetration with a person 18 or 19 years of age 15 who the offender knows is committed to the custody of the Department of Health and 16 Social Services under AS 47.10 or AS 47.12 and the offender is the legal guardian of 17 the person; 18 (4) while employed in the state by a law enforcement agency as a 19 peace officer, or while acting as a peace officer in the state, engages in sexual 20 penetration with a person with reckless disregard that the person is in the custody or 21 the apparent custody of the offender, or is committed to the custody of a law 22 enforcement agency; 23 (5) while employed by the state or a municipality of the state as a 24 probation officer or parole officer, or while acting as a probation officer or parole 25 officer in the state, engages in sexual penetration with a person with reckless disregard 26 that the person is on probation or parole; [OR] 27 (6) while employed as a juvenile probation officer or as a juvenile 28 facility staff, engages in sexual penetration with a person 18 or 19 years of age with 29 reckless disregard that the person is committed to the custody or probationary 30 supervision of the Department of Health and Social Services; or 31 (7) under circumstances not proscribed under AS 11.41.420, the 01 offender engages in sexual contact with another person without consent of that 02 person; in this paragraph, "sexual contact" does not include an offender 03 knowingly causing a person to come into contact with semen. 04 * Sec. 4. AS 11.41.445 is amended by adding a new subsection to read: 05 (c) In a prosecution under AS 11.41.410 - 11.41.427, where consent is at 06 issue, 07 (1) an expression of lack of consent through words or conduct means 08 there is no consent; absence of verbal or physical resistance does not establish consent; 09 (2) consent may be express or inferred from a person's behavior; both a 10 person's action and inaction, in the context of the circumstances, may be considered; 11 (3) consent may be revoked or withdrawn at any time and a clear 12 verbal refusal establishes the revocation or withdrawal of prior consent; lack of 13 consent or revocation or withdrawal of consent may be overridden by subsequent 14 consent given before the conduct at issue occurred; 15 (4) a person who is incapacitated as a result of an act of the defendant 16 cannot consent. 17 * Sec. 5. AS 11.41.470 is amended by adding a new paragraph to read: 18 (11) "consent" means a freely given, reversible agreement specific to 19 the conduct at issue; in this paragraph, "freely given" means agreement to cooperate in 20 the act was positively expressed by word or action. 21 * Sec. 6. AS 11.56.765(c) is amended by adding a new paragraph to read: 22 (5) "consent" has the meaning given in AS 11.41.470. 23 * Sec. 7. AS 11.56.767(c) is amended by adding a new paragraph to read: 24 (5) "consent" has the meaning given in AS 11.41.470. 25 * Sec. 8. AS 26.05.900(e) is amended by adding a new paragraph to read: 26 (9) "consent" has the meaning given in AS 26.05.890(h). 27 * Sec. 9. AS 44.41.065(a) is amended to read: 28 (a) When a law enforcement agency collects a sexual assault examination kit 29 under AS 18.68.010, the agency shall 30 (1) within 30 days after the agency collects the sexual assault 31 examination kit, send the sexual assault examination kit to an accredited laboratory in 01 coordination with the Department of Public Safety or a laboratory operated by the 02 Department of Public Safety; 03 (2) ensure that the laboratory to which the sexual assault examination 04 kit is sent under (1) of this subsection conducts a serological or DNA test on the 05 sexual assault examination kit within six months [ONE YEAR] after the laboratory 06 receives the sexual assault examination kit; and 07 (3) within two weeks after the laboratory that receives the sexual 08 assault examination kit under (1) of this subsection completes serological or DNA 09 testing, make a reasonable effort to notify the victim from whom the sexual assault 10 examination kit was collected that the sexual assault examination kit has been tested. 11 * Sec. 10. AS 11.41.470(10); AS 11.56.765(c)(4), 11.56.767(c)(4); and AS 26.05.900(e)(8) 12 are repealed. 13 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 APPLICABILITY. AS 11.41.410(a), as amended by sec. 1 of this Act, 16 AS 11.41.420(a), as amended by sec. 2 of this Act, AS 11.41.425(a), as amended by sec. 3 of 17 this Act, AS 11.41.445(c), enacted by sec. 4 of this Act, AS 11.41.470, as amended by sec. 5 18 of this Act, AS 11.56.765(c), as amended by sec. 6 of this Act, AS 11.56.767(c), as amended 19 by sec. 7 of this Act, AS 26.05.900(e), as amended by sec. 8 of this Act, and the repeals of 20 AS 11.41.470(10), AS 11.56.765(c)(4), 11.56.767(c)(4), and AS 26.05.900(e)(8) by sec. 10 of 21 this Act, apply to offenses committed on or after the effective date of secs. 1 - 8 and 10 of this 22 Act. 23 * Sec. 12. Section 9 of this Act takes effect July 1, 2023.