CSSSHB 5(STA): "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the code of military justice; relating to consent; relating to the testing of sexual assault examination kits; and providing for an effective date."
00 CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5(STA) 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 is amended to read: 06 Sec. 11.41.410. Sexual assault in the first degree. (a) An offender commits 07 the crime of sexual assault in the first degree if 08 (1) the offender engages in sexual penetration with another person 09 without consent of that 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; or 10 (5) the offender engages in sexual penetration with a person whom 11 the offender has induced to believe by artifice, pretense, or concealment that the 12 offender is another person based on the offender's real identity, not on 13 characteristics, traits, or accomplishments of or similar facts about the offender, 14 with reckless disregard that the person would not have consented to the sexual 15 penetration if the person knew the offender's real identity. 16 (b) Sexual assault in the first degree, 17 (1) under (a)(1) - (4) of this section, is an unclassified felony and is 18 punishable as provided in AS 12.55; 19 (2) under (a)(5) of this section, is a class A felony and is punishable 20 as provided in AS 12.55. 21 * Sec. 2. AS 11.41.420(a) is amended to read: 22 (a) An offender commits the crime of sexual assault in the second degree if 23 (1) the offender engages in sexual contact with another person without 24 consent of that person; 25 (2) the offender engages in sexual contact with a person 26 (A) who the offender knows is mentally incapable; and 27 (B) who is in the offender's care 28 (i) by authority of law; or 29 (ii) in a facility or program that is required by law to be 30 licensed by the state; 31 (3) the offender engages in sexual penetration with a person who is
01 (A) mentally incapable; 02 (B) incapacitated; or 03 (C) unaware that a sexual act is being committed; [OR] 04 (4) the offender engages in sexual contact 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 contact with a person whom the 10 offender has induced to believe by artifice, pretense, or concealment that the 11 offender is another person based on the offender's real identity, not on 12 characteristics, traits, or accomplishments of or similar facts about the offender, 13 with reckless disregard that the person would not have consented to the sexual 14 contact if the person knew the offender's real identity. 15 * Sec. 3. AS 11.41.434(a) is amended to read: 16 (a) An offender commits the crime of sexual abuse of a minor in the first 17 degree if 18 (1) being 16 years of age or older, the offender engages in sexual 19 penetration with a person who is under 13 years of age or aids, induces, causes, or 20 encourages a person who is under 13 years of age to engage in sexual penetration with 21 another person; 22 (2) being 18 years of age or older, the offender engages in sexual 23 penetration with a person who is under 18 years of age, and the offender is the victim's 24 natural parent, stepparent, adopted parent, or legal guardian; [OR] 25 (3) being 18 years of age or older, the offender engages in sexual 26 penetration with a person who is under 16 years of age, and 27 (A) the victim at the time of the offense is residing in the same 28 household as the offender and the offender has authority over the victim; or 29 (B) the offender occupies a position of authority in relation to 30 the victim; or 31 (4) being 18 years of age or older, the offender engages in sexual
01 penetration with a person who is 13, 14, 15, 16, or 17 years of age and at least 10 02 years younger than the offender, or aids, induces, causes, or encourages a person 03 who is 13, 14, 15, 16, or 17 years of age and at least 10 years younger than the 04 offender to engage in sexual penetration with another person. 05 * Sec. 4. AS 11.41.436(a) is amended to read: 06 (a) An offender commits the crime of sexual abuse of a minor in the second 07 degree if, 08 (1) being 17 years of age or older, the offender engages in sexual 09 penetration with a person who is 13, 14, or 15 years of age and at least four years, but 10 not more than 10 years, younger than the offender, or aids, induces, causes, or 11 encourages a person who is 13, 14, or 15 years of age and at least four years, but not 12 more than 10 years, younger than the offender to engage in sexual penetration with 13 another person; 14 (2) being 16 years of age or older, the offender engages in sexual 15 contact with a person who is under 13 years of age or aids, induces, causes, or 16 encourages a person under 13 years of age to engage in sexual contact with another 17 person; 18 (3) being 18 years of age or older, the offender engages in sexual 19 contact with a person who is under 18 years of age, and the offender is the victim's 20 natural parent, stepparent, adopted parent, or legal guardian; 21 (4) being 16 years of age or older, the offender aids, induces, causes, 22 or encourages a person who is under 16 years of age to engage in conduct described in 23 AS 11.41.455(a)(2) - (6); 24 (5) being 18 years of age or older, the offender engages in sexual 25 contact with a person who is under 16 years of age, and 26 (A) the victim at the time of the offense is residing in the same 27 household as the offender and the offender has authority over the victim; or 28 (B) the offender occupies a position of authority in relation to 29 the victim; 30 (6) being 18 years of age or older, the offender engages in sexual 31 penetration with a person who is 16 or 17 years of age and at least three years younger
01 than the offender, and the offender occupies a position of authority in relation to the 02 victim; [OR] 03 (7) being under 16 years of age, the offender engages in sexual 04 penetration with a person who is under 13 years of age and at least three years younger 05 than the offender; or 06 (8) being 18 years of age or older, the offender engages in sexual 07 contact with a person who is 13, 14, 15, 16, or 17 years of age and at least 10 years 08 younger than the offender, or aids, induces, causes, or encourages a person who 09 is 13, 14, 15, 16, or 17 years of age and at least 10 years younger than the offender 10 to engage in sexual contact with another person. 11 * Sec. 5. AS 11.41.445 is amended by adding a new subsection to read: 12 (c) In a prosecution under AS 11.41.410 - 11.41.440, where consent is at 13 issue, 14 (1) an expression of lack of consent through words or conduct means 15 there is no consent; lack of verbal or physical resistance or submission resulting from 16 the use of force, threat of force, or placing another person in fear may not constitute 17 consent; a current or previous dating, social, or sexual relationship by itself or the 18 manner of dress of the person involved with the defendant in the conduct at issue may 19 not constitute consent; 20 (2) a person cannot consent to force causing or likely to cause death or 21 serious physical injury or to being rendered unconscious; a person cannot consent 22 while under threat or fear or under circumstances where the person is fraudulently 23 made to believe that the sexual act serves a professional purpose; in this paragraph, 24 "professional purpose" means an act the defendant has represented as a necessary part 25 or component of a provided service, part of the routine course of a procedure, or a 26 component of the defendant's profession that would occur if a person sought services 27 from another practitioner in the same field as the defendant; 28 (3) lack of consent may be inferred based on the circumstances of the 29 offense; the surrounding circumstances shall be considered in determining whether a 30 person gave consent or whether a person did not resist or ceased to resist only because 31 of another person's actions.
01 * Sec. 6. AS 11.41.470 is amended by adding a new paragraph to read: 02 (9) "consent" means a freely given, reversible agreement specific to 03 the conduct at issue; in this paragraph, "freely given" means agreement to cooperate in 04 the act was positively expressed by word or action. 05 * Sec. 7. AS 11.56.765(c) is amended by adding a new paragraph to read: 06 (5) "consent" has the meaning given in AS 11.41.470. 07 * Sec. 8. AS 11.56.767(c) is amended by adding a new paragraph to read: 08 (5) "consent" has the meaning given in AS 11.41.470. 09 * Sec. 9. AS 26.05.900(e) is amended by adding a new paragraph to read: 10 (9) "consent" has the meaning given in AS 26.05.890(h). 11 * Sec. 10. AS 44.41.065(a) is amended to read: 12 (a) When a law enforcement agency collects a sexual assault examination kit 13 under AS 18.68.010, the agency shall 14 (1) within 30 days after the agency collects the sexual assault 15 examination kit, send the sexual assault examination kit to an accredited laboratory in 16 coordination with the Department of Public Safety or a laboratory operated by the 17 Department of Public Safety; 18 (2) ensure that the laboratory to which the sexual assault examination 19 kit is sent under (1) of this subsection conducts a serological or DNA test on the 20 sexual assault examination kit within six months [ONE YEAR] after the laboratory 21 receives the sexual assault examination kit; and 22 (3) within two weeks after the laboratory that receives the sexual 23 assault examination kit under (1) of this subsection completes serological or DNA 24 testing, make a reasonable effort to notify the victim from whom the sexual assault 25 examination kit was collected that the sexual assault examination kit has been tested. 26 * 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) 27 are repealed. 28 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 APPLICABILITY. AS 11.41.410, as amended by sec. 1 of this Act, AS 11.41.420(a), 31 as amended by sec. 2 of this Act, AS 11.41.434(a), as amended by sec. 3 of this Act,
01 AS 11.41.436(a), as amended by sec. 4 of this Act, AS 11.41.445(c), enacted by sec. 5 of this 02 Act, AS 11.41.470, as amended by sec. 6 of this Act, AS 11.56.765(c), as amended by sec. 7 03 of this Act, AS 11.56.767(c), as amended by sec. 8 of this Act, AS 26.05.900(e), as amended 04 by sec. 9 of this Act, and the repeals of AS 11.41.470(8), AS 11.56.765(c)(4), 05 AS 11.56.767(c)(4), and AS 26.05.900(e)(8) by sec. 11 of this Act apply to offenses 06 committed on or after the effective date of secs. 1 - 9 and 11 of this Act. 07 * Sec. 13. Section 10 of this Act takes effect July 1, 2023.