HB 399

UNOFFICIAL COPY  26 RS BR 1825
1AN ACT relating to sexual offenses against children.
2 Be it enacted by the General Assembly of the Commonwealth of Kentucky:
3Section 1. KRS 510.040 is amended to read as follows:
4 (1)    A person is guilty of rape in the first degree when:
5(a)    He or she engages in sexual intercourse with another person by forcible
6compulsion; or
7(b)    He or she engages in sexual intercourse with another person who is incapable
8of consent because he or she:
91.      Is physically helpless; or
102.      Is less than twelve (12) years old.
11 (2)    Rape in the first degree is a Class B felony unless the victim:
12(a)    Receives a serious physical injury, in which case it is a Class A felony; or
13(b)    Is under twelve (12) years old, in which case it is a capital offense[ is under
14twelve (12) years old or receives a serious physical injury in which case it is a
15Class A felony].
16Section 2. KRS 510.070 is amended to read as follows:
17 (1)    A person is guilty of sodomy in the first degree when:
18(a)    He or she engages in deviate sexual intercourse with another person by
19forcible compulsion; or
20(b)    He or she engages in deviate sexual intercourse with another person who is
21incapable of consent because he or she:
221.      Is physically helpless; or
232.      Is less than twelve (12) years old.
24 (2)    Sodomy in the first degree is a Class B felony unless the victim:
25(a)    Receives a serious physical injury, in which case it is a Class A felony; or
26(b)    Is under twelve (12) years old, in which case it is a capital offense[ is under
27twelve (12) years old or receives a serious physical injury in which case it is a
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1Class A felony].
2Section 3. KRS 510.110 is amended to read as follows:
3 (1)    A person is guilty of sexual abuse in the first degree when:
4(a)    He or she subjects another person to sexual contact by forcible compulsion; or
5(b)    He or she subjects another person to sexual contact who is incapable of
6consent because he or she:
71.      Is physically helpless;
82.      Is less than twelve (12) years old;
93.      Is mentally incapacitated; or
104.      Is an individual with an intellectual disability; or
11(c)    Being twenty-one (21) years old or more, he or she:
121.      Subjects another person who is less than sixteen (16) years old to sexual
13contact;
142.      Engages in masturbation in the presence of another person who is less
15than sixteen (16) years old and knows or has reason to know the other
16person is present; or
173.      Engages in masturbation while using the internet, telephone, or other
18electronic communication device while communicating with a minor
19who the person knows is less than sixteen (16) years old, and the minor
20can see or hear the person masturbate; or
21(d)    Being a person in a position of authority or position of special trust, as defined
22in KRS 532.045, he or she, regardless of his or her age, subjects a minor who
23is less than eighteen (18) years old, with whom he or she comes into contact
24as a result of that position, to sexual contact or engages in masturbation in the
25presence of the minor and knows or has reason to know the minor is present
26or engages in masturbation while using the internet, telephone, or other
27electronic communication device while communicating with a minor who the
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1person knows is less than sixteen (16) years old, and the minor can see or hear
2the person masturbate.
3 (2)    Sexual abuse in the first degree is a Class D felony, unless the victim is less than
4twelve (12) years old, in which case the offense shall be a capital offense[Class C
5felony].
6Section 4. KRS 532.025 is amended to read as follows:
7 (1)    (a)    Upon conviction of a defendant in cases where the death penalty may be
8imposed, a hearing shall be conducted. In the[such] hearing, the judge shall
9hear additional evidence in extenuation, mitigation, and aggravation of
10punishment, including the record of any prior criminal convictions and pleas
11of guilty or pleas of nolo contendere of the defendant, or the absence of any
12prior conviction and pleas.[; provided, however, that] Only the[such] evidence
13in aggravation as the Commonwealth[state] has made known to the defendant
14prior to his or her trial shall be admissible. Subject to the Kentucky Rules of
15Evidence, juvenile court records of adjudications of guilt of a child for an
16offense that would be a felony if committed by an adult shall be admissible in
17court at any time the child is tried as an adult, or after the child becomes an
18adult, at any subsequent criminal trial relating to that same person. Juvenile
19court records made available pursuant to this section may be used for
20impeachment purposes during a criminal trial and may be used during the
21sentencing phase of a criminal trial; however, the fact that a juvenile has been
22adjudicated delinquent of an offense that would be a felony if the child had
23been an adult shall not be used in finding the child to be a persistent felony
24offender based upon that adjudication. Release of the child's treatment,
25medical, mental, or psychological records is prohibited unless presented as
26evidence in Circuit Court. Release of any records resulting from the child's
27prior abuse and neglect under Title IV-E or IV-B of the Federal Social
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1Security Act is also prohibited. The judge shall also hear argument by the
2defendant or his or her counsel and the prosecuting attorney, as provided by
3law, regarding the punishment to be imposed. The prosecuting attorney shall
4open and the defendant shall conclude the argument. In cases in which the
5death penalty may be imposed, the judge when sitting without a jury shall
6follow the additional procedure provided in subsection (2) of this section.
7Upon the conclusion of the evidence and arguments, the judge shall impose
8the sentence or shall recess the trial for the purpose of taking the sentence
9within the limits prescribed by law. If the trial court is reversed on appeal
10because of error only in the presentence hearing, the new trial which may be
11ordered shall apply only to the issue of punishment.
12(b)    In all cases in which the death penalty may be imposed and which are tried by
13a jury, upon a return of a verdict of guilty by the jury, the court shall resume
14the trial and conduct a presentence hearing before the jury. The[Such] hearing
15shall be conducted in the same manner as presentence hearings conducted
16before the judge as provided in paragraph (a) of this subsection, including the
17record of any prior criminal convictions and pleas of guilty or pleas of nolo
18contendere of the defendant. Upon the conclusion of the evidence and
19arguments, the judge shall give the jury appropriate instructions, and the jury
20shall retire to determine whether any mitigating or aggravating circumstances,
21as defined in subsection (2) of this section, exist and to recommend a sentence
22for the defendant. Upon the findings of the jury, the judge shall fix a sentence
23within the limits prescribed by law.
24 (2)    In all cases of offenses for which the death penalty may be authorized, the judge
25shall consider, or include in his or her instructions to the jury for it to consider, any
26mitigating circumstances or aggravating circumstances otherwise authorized by law
27and any of the following statutory aggravating or mitigating circumstances which
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1may be supported by the evidence:
2(a)    Aggravating circumstances:
31.      The offense of murder or kidnapping was committed by a person with a
4prior record of conviction for a capital offense, or the offense of murder
5was committed by a person who has a substantial history of serious
6assaultive criminal convictions;
72.      The offense of murder or kidnapping was committed while the offender
8was engaged in the commission of arson in the first degree, robbery in
9the first degree, burglary in the first degree, rape in the first degree, or
10sodomy in the first degree;
113.      The offender by his or her act of murder, armed robbery, or kidnapping
12knowingly created a great risk of death to more than one (1) person in a
13public place by means of a weapon of mass destruction, weapon, or
14other device which would normally be hazardous to the lives of more
15than one (1) person;
164.      The offender committed the offense of murder for himself, herself, or
17another, for the purpose of receiving money or any other thing of
18monetary value, or for other profit;
195.      The offense of murder was committed by a person who was a prisoner
20and the victim was a prison employee engaged at the time of the act in
21the performance of his or her duties;
226.      The offender's act or acts of killing were intentional and resulted in
23multiple deaths;
247.      The offender's act of killing was intentional and the victim was:
25a.   A state or local public official; or
26b.   A first responder, as defined in KRS 507.070;
278.      The offender murdered the victim when an emergency protective order
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1or a domestic violence order was in effect, or when any other order
2designed to protect the victim from the offender, such as an order issued
3as a condition of a bond, conditional release, probation, parole, or
4pretrial diversion, was in effect;[ and]
59.      The offender's act of killing was intentional and resulted in the death of
6a child under twelve (12) years old; and
710.     The offense of rape in the first degree, sodomy in the first degree, or
8sexual abuse in the first degree was committed against a child under
9twelve (12) years old.
10(b)    Mitigating circumstances:
111.      The defendant has no significant history of prior criminal activity;
122.      The capital offense was committed while the defendant was under the
13influence of extreme mental or emotional disturbance even though the
14influence of extreme mental or emotional disturbance is not sufficient to
15constitute a defense to the crime;
163.      The victim was a participant in the defendant's criminal conduct or
17consented to the criminal act;
184.      The capital offense was committed under circumstances which the
19defendant believed to provide a moral justification or extenuation for his
20or her conduct even though the circumstances which the defendant
21believed to provide a moral justification or extenuation for his or her
22conduct are not sufficient to constitute a defense to the crime;
235.      The defendant was an accomplice in a capital offense committed by
24another person and his or her participation in the capital offense was
25relatively minor;
266.      The defendant acted under duress or under the domination of another
27person even though the duress or the domination of another person is not
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1sufficient to constitute a defense to the crime;
27.      At the time of the capital offense, the capacity of the defendant to
3appreciate the criminality of his or her conduct to the requirements of
4law was impaired as a result of mental illness or an intellectual disability
5or intoxication even though the impairment of the capacity of the
6defendant to appreciate the criminality of his or her conduct or to
7conform the conduct to the requirements of law is insufficient to
8constitute a defense to the crime; and
98.      The youth of the defendant at the time of the crime.
10 (3)    The instructions as determined by the trial judge to be warranted by the evidence or
11as required by KRS 532.030(4) shall be given in charge and in writing to the jury
12for its deliberation. The jury, if its verdict be a recommendation of death, or
13imprisonment for life without benefit of probation or parole, or imprisonment for
14life without benefit of probation or parole until the defendant has served a minimum
15of twenty-five (25) years of his or her sentence, shall designate in writing, signed by
16the foreman of the jury, the aggravating circumstance or circumstances which it
17found beyond a reasonable doubt. In nonjury cases, the judge shall make such
18designation. In all cases unless at least one (1) of the statutory aggravating
19circumstances enumerated in subsection (2) of this section is so found, the death
20penalty, or imprisonment for life without benefit of probation or parole, or the
21sentence to imprisonment for life without benefit of probation or parole until the
22defendant has served a minimum of twenty-five (25) years of his or her sentence,
23shall not be imposed.
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