Text of AL SB 320 (2019)

1 SB320 2 197764-2 3 By Senator Figures 4 RFD: Judiciary 5 First Read: 18-APR-19 Page 0 1 197764-2:n:04/18/2019:CNB/cr LSA2019-851R1 2 3 4 5 6 7 8 SYNOPSIS: Under existing law, deviate sexual 9 intercourse is defined as any act of sexual 10 gratification between persons not married to each 11 other involving the sex organs of one person and 12 the mouth or anus of another. 13 Under existing law, sexual contact is 14 defined as any touching of the sexual or other 15 intimate parts of a person not married to the 16 actor, done for the purpose of gratifying the 17 sexual desire of either party. 18 Under existing law, mental defectiveness, 19 mental incapacitation, and physical helplessness 20 are individually defined and separated into various 21 sexual offenses. 22 Under existing law, forcible compulsion 23 requires physical force that overcomes earnest 24 resistance or a threat that places a person in fear 25 of immediate death of serious physical injury. Page 1 1 Under existing law, sexual misconduct only 2 involves sexual intercourse and deviate sexual 3 intercourse. 4 Existing law sometimes provides for offenses 5 to be committed only on a member of the 6 perpetrator's opposite sex. 7 Further, existing law defines certain 8 criminal offenses as sex crimes for the purpose of 9 application of the Alabama Sex Offender 10 Registration and Community Notification Act. 11 Existing law provides that directing a child 12 to engage in a sex act is one of the criminal 13 offenses defined as a sex crime. 14 This bill would redefine deviate sexual 15 intercourse as sodomy and include mental 16 defectiveness, mental incapacitation, and physical 17 helplessness in a broad definition of 18 incapacitation, and further redefine sexual contact 19 to include touching that occurs through clothing 20 without regard to marital relationship. 21 This bill would expand the definition of 22 forcible compulsion. 23 This bill would provide that certain sexual 24 contact can be an offense under sexual misconduct. 25 This bill would provide additional offenses 26 to be included as sexual torture. Page 2 1 This bill would also make certain technical 2 corrections. 3 Amendment 621 of the Constitution of Alabama 4 of 1901, now appearing as Section 111.05 of the 5 Official Recompilation of the Constitution of 6 Alabama of 1901, as amended, prohibits a general 7 law whose purpose or effect would be to require a 8 new or increased expenditure of local funds from 9 becoming effective with regard to a local 10 governmental entity without enactment by a 2/3 vote 11 unless: it comes within one of a number of 12 specified exceptions; it is approved by the 13 affected entity; or the Legislature appropriates 14 funds, or provides a local source of revenue, to 15 the entity for the purpose. 16 The purpose or effect of this bill would be 17 to require a new or increased expenditure of local 18 funds within the meaning of the amendment. However, 19 the bill does not require approval of a local 20 governmental entity or enactment by a 2/3 vote to 21 become effective because it comes within one of the 22 specified exceptions contained in the amendment. 23 24 A BILL 25 TO BE ENTITLED 26 AN ACT 27 Page 3 1 Relating to sexual offenses; to amend Sections 2 13A-5-6, 13A-6-60, 13A-6-61, 13A-6-62, 13A-6-63, 13A-6-64, 3 13A-6-65, 13A-6-65.1, 13A-6-66, 13A-6-67, 13A-6-68, 13A-6-70, 4 13A-6-71, 13A-6-81, 13A-6-82, as corrected by Act 2018-406, 5 the Codification Act, 2018 Regular Session, 13A-6-122, 6 13A-6-241, 13A-6-243, 13A-11-9, 13A-11-32.1, 13A-12-120, 7 13A-12-121, 13A-12-190, 13A-12-192, 15-3-5, 15-20A-5, and 8 15-20A-44, as last amended by Act 2018-528, 2018 Regular 9 Session, 15-23-101, and 15-23-102, Code of Alabama 1975, to 10 revise certain definitions and sexual offenses; to expand the 11 definition of forcible compulsion; to provide that certain 12 sexual contact can be an offense under sexual misconduct; to 13 provide additional offenses for sexual torture; to make 14 technical corrections; and in connection therewith would have 15 as its purpose or effect the requirement of a new or increased 16 expenditure of local funds within the meaning of Amendment 621 17 of the Constitution of Alabama of 1901, now appearing as 18 Section 111.05 of the Official Recompilation of the 19 Constitution of Alabama of 1901, as amended. 20 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: 21 Section 1. Sections 13A-5-6, 13A-6-60, 13A-6-61, 22 13A-6-62, 13A-6-63, 13A-6-64, 13A-6-65, 13A-6-65.1, 13A-6-66, 23 13A-6-67, 13A-6-68, 13A-6-70, 13A-6-71, 13A-6-81, 13A-6-82, as 24 corrected by Act 2018-406, the Codification Act, 2018 Regular 25 Session, 13A-6-122, 13A-6-241, 13A-6-243, 13A-11-9, 26 13A-11-32.1, 13A-12-120, 13A-12-121, 13A-12-190, 13A-12-192, 27 15-3-5, 15-20A-5, and 15-20A-44, as last amended by Act Page 4 1 2018-528, 2018 Regular Session, 15-23-101, and 15-23-102, Code 2 of Alabama 1975, are amended to read as follows: 3 "§13A-5-6. 4 "(a) Sentences for felonies shall be for a definite 5 term of imprisonment, which imprisonment includes hard labor, 6 within the following limitations: 7 "(1) For a Class A felony, for life or not more than 8 99 years or less than 10 years. 9 "(2) For a Class B felony, not more than 20 years or 10 less than 2 years. 11 "(3) For a Class C felony, not more than 10 years or 12 less than 1 year and 1 day and must be in accordance with 13 subsection (b) of Section 15-18-8 unless sentencing is 14 pursuant to Section 13A-5-9 or the offense is a sex offense 15 pursuant to Section 15-20A-5. 16 "(4) For a Class D felony, not more than 5 years or 17 less than 1 year and 1 day and must be in accordance with 18 subsection (b) of Section 15-18-8. 19 "(5) For a Class A felony in which a firearm or 20 deadly weapon was used or attempted to be used in the 21 commission of the felony, or a Class A felony sex offense 22 involving a child as defined in Section 15-20A-4(26), not less 23 than 20 years. 24 "(6) For a Class B or C felony in which a firearm or 25 deadly weapon was used or attempted to be used in the 26 commission of the felony, or a Class B felony sex offense Page 5 1 involving a child as defined in Section 15-20A-4(26), not less 2 than 10 years. 3 "(b) The actual time of release within the 4 limitations established by subsection (a) of this section 5 shall be determined under procedures established elsewhere by 6 law. 7 "(c) In addition to any penalties heretofore or 8 hereafter provided by law, in all cases where an offender is 9 designated as a sexually violent predator pursuant to Section 10 15-20A-19, or where an offender is convicted of a Class A 11 felony sex offense involving a child as defined in Section 12 15-20A-4(26), and is sentenced to a county jail or the Alabama 13 Department of Corrections, the sentencing judge shall impose 14 an additional penalty of not less than 10 years of 15 post-release supervision to be served upon the defendant's 16 release from incarceration. 17 "(d) In addition to any penalties heretofore or 18 hereafter provided by law, in all cases where an offender is 19 convicted of a sex offense pursuant to Section 13A-6-61, 20 13A-6-63, or 13A-6-65.1, when the defendant was 21 years of 21 age or older and the victim was six years of age or less at 22 the time the offense was committed, the defendant shall be 23 sentenced to life imprisonment without the possibility of 24 parole. 25 "§13A-6-60. 26 "The following definitions apply in this article: Page 6 1 "(1) (4) SEXUAL INTERCOURSE. Such term has its 2 ordinary meaning and occurs upon any penetration, however 3 slight; emission is not required. 4 "(3) SEXUAL CONTACT. Any touching of the sexual or 5 other intimate parts of a person not married to the actor, 6 done for the purpose of gratifying the sexual desire of either 7 party. The term does not require skin to skin contact. 8 "(2) (5) DEVIATE SEXUAL INTERCOURSE. Any act of 9 sexual gratification between persons not married to each other 10 involving the sex organs of one person and the mouth or anus 11 of another SODOMY. Any sexual act involving the genitals of 12 one person and the mouth or anus of another person. 13 "(4) (2) FEMALE. Any female person. INCAPACITATED. 14 Such The term includes any of the following: 15 "a. A person who suffers from a mental or 16 developmental disease or disability which renders the person 17 incapable of appraising the nature of his or her conduct. 18 "b. A person is temporarily incapable of appraising 19 or controlling his or her conduct due to the influence of a 20 narcotic, anesthetic, or intoxicating substance and the 21 condition was known or should have been reasonably known to 22 the offender. 23 "c. A person who is unable to give consent or to 24 communicate an unwillingness to an act because the person is 25 unconscious, asleep, or is otherwise physically limited or 26 unable to communicate. Page 7 1 "(5) MENTALLY DEFECTIVE. Such term means that a 2 person suffers from a mental disease or defect which renders 3 him incapable of appraising the nature of his conduct. 4 "(6) MENTALLY INCAPACITATED. Such term means that a 5 person is rendered temporarily incapable of appraising or 6 controlling his conduct owing to the influence of a narcotic 7 or intoxicating substance administered to him without his 8 consent, or to any other incapacitating act committed upon him 9 without his consent. 10 "(7) PHYSICALLY HELPLESS. Such term means that a 11 person is unconscious or for any other reason is physically 12 unable to communicate unwillingness to an act. 13 "(8) (1) FORCIBLE COMPULSION. Physical force that 14 overcomes earnest resistance or a threat, express or implied, 15 that places a person in fear of immediate death or serious 16 physical injury to himself or another person Use or threatened 17 use, whether express or implied, of physical force, violence, 18 confinement, restraint, physical injury, or death to the 19 threatened person or to another person. Factors to be 20 considered in determining an implied threat include, but are 21 not limited to, the respective ages and sizes of the victim 22 and the accused; the respective mental and physical conditions 23 of the victim and the accused; the atmosphere and physical 24 setting in which the incident was alleged to have taken place; 25 the extent to which the accused may have been in a position of 26 authority, domination, or custodial control over the victim; Page 8 1 or whether the victim was under duress. Forcible compulsion 2 does not require proof of resistance by the victim. 3 "§13A-6-61. 4 "(a) A person commits the crime of rape in the first 5 degree if he or she does any of the following: 6 "(1) He or she engages Engages in sexual intercourse 7 with a member of the opposite sex another person by forcible 8 compulsion; or. 9 "(2) He or she engages Engages in sexual intercourse 10 with a member of the opposite sex another person who is 11 incapable of consent by reason of being physically helpless or 12 mentally incapacitated; or. 13 "(3) He or she, being Being 16 years old or older, 14 engages in sexual intercourse with a member of the opposite 15 sex another person who is less than 12 years old. 16 "(b) Rape in the first degree is a Class A felony. 17 "§13A-6-62. 18 "(a) A person commits the crime of rape in the 19 second degree if:, 20 "(1) Being being 16 years old or older, he or she 21 engages in sexual intercourse with a member of the opposite 22 sex another person who is 12 years old or older, but less than 23 16 years old and more than 12 years old; provided, however, 24 the actor is at least two years older than the member of the 25 opposite sex other person. Page 9 1 "(2) He or she engages in sexual intercourse with a 2 member of the opposite sex who is incapable of consent by 3 reason of being mentally defective. 4 "(b) Rape in the second degree is a Class B felony. 5 "§13A-6-63. 6 "(a) A person commits the crime of sodomy in the 7 first degree if he or she does any of the following: 8 "(1) He engages Engages in deviate sexual 9 intercourse sodomy with another person by forcible compulsion; 10 or. 11 "(2) He engages Engages in deviate sexual 12 intercourse sodomy with a another person who is incapable of 13 consent by reason of being physically helpless or mentally 14 incapacitated; or. 15 "(3) He, being Being 16 years old or older, engages 16 in deviate sexual intercourse sodomy with a person who is less 17 than 12 years old. 18 "(b) Sodomy in the first degree is a Class A felony. 19 "§13A-6-64. 20 "(a) A person commits the crime of sodomy in the 21 second degree if:, 22 "(1) He, being 16 years old or older, he or she 23 engages in deviate sexual intercourse sodomy with another 24 person 12 years old or older, but less than 16 years old and 25 more than 12 years old.; provided, however, the actor is at 26 least two years older than the other person. Page 10 1 "(2) He engages in deviate sexual intercourse with a 2 person who is incapable of consent by reason of being mentally 3 defective. 4 "(b) Sodomy in the second degree is a Class B 5 felony. 6 "§13A-6-65. 7 "(a) A person commits the crime of sexual misconduct 8 if he or she does any of the following: 9 "(1) Being a male, he engages Engages in sexual 10 intercourse with a female another person without his or her 11 consent, under circumstances other than those covered by 12 Sections 13A-6-61 and 13A-6-62; or with her consent where 13 consent was obtained by the use of any fraud or artifice; or. 14 "(2) Being a female, she engages in sexual 15 intercourse with a male without his consent; or 16 "(3)(2) He or she engages Engages in deviate sexual 17 intercourse sodomy with another person, without his or her 18 consent, under circumstances other than those covered by 19 Sections 13A-6-63 and 13A-6-64.; Consent is no defense to a 20 prosecution under this subdivision or with consent where 21 consent was obtained by the use of fraud or artifice. 22 "(3) Engages in sexual contact with another person 23 without his or her consent under circumstances other than 24 those under Sections 13A-6-66, 13A-6-67, and 13A-6-69.1; or 25 with consent where consent was obtained by the use of fraud or 26 artifice. 27 "(b) Sexual misconduct is a Class A misdemeanor. Page 11 1 "§13A-6-65.1. 2 "(a) A person commits the crime of sexual torture if 3 he or she does any of the following: 4 "(1) By penetrating Penetrates the vagina or, anus, 5 or mouth of another person with an inanimate object, by 6 forcible compulsion, with the intent to sexually torture or 7 to, sexually abuse, or to gratify the sexual desire of either 8 party. 9 "(2) By penetrating Penetrates the vagina or, anus, 10 or mouth of a person who is incapable of consent by reason of 11 physical helplessness or mental incapacity being 12 incapacitated, with an inanimate object, with the intent to 13 sexually torture or to, sexually abuse, or to gratify the 14 sexual desire of either party. 15 "(3) By penetrating Penetrates the vagina or, anus, 16 or mouth of a person who is less than 12 years old, with an 17 inanimate object, by a person who is 16 years old or older 18 with the intent to sexually torture or to, sexually abuse, or 19 to gratify the sexual desire of either party. 20 "(4) By inflicting physical injury, including, but 21 not limited to, burning, crushing, wounding, mutilating, or 22 assaulting the sex organs or intimate parts of another person, 23 with the intent to sexually torture, sexually abuse, or to 24 gratify the sexual desire of either party. 25 "(b) The crime of sexual torture is a Class A 26 felony. 27 "§13A-6-66. Page 12 1 "(a) A person commits the crime of sexual abuse in 2 the first degree if he or she does either of the following: 3 "(1) He subjects Subjects another person to sexual 4 contact by forcible compulsion; or. 5 "(2) He subjects Subjects another person to sexual 6 contact who is incapable of consent by reason of being 7 physically helpless or mentally incapacitated. 8 "(b) Sexual abuse in the first degree is a Class C 9 felony. 10 "§13A-6-67. 11 "(a) A person commits the crime of sexual abuse in 12 the second degree if he or she does either of the following: 13 "(1) He subjects Subjects another person to sexual 14 contact who is incapable of consent by reason of some factor 15 other than being less than 16 years old; or. 16 "(2) He, being Being 19 years old or older, subjects 17 another person to sexual contact who is 12 years old or older, 18 but less than 16 years old , but more than 12 years old. 19 "(b) Sexual abuse in second degree is a Class A 20 misdemeanor, except that if a person commits a second or 21 subsequent offense of sexual abuse in the second degree within 22 one year of another sexual offense, the offense is a Class C 23 felony. 24 "§13A-6-68. 25 (a) A person commits the crime of indecent exposure 26 if, with intent to arouse or gratify sexual desire of himself 27 or herself, or of any person other than his or her spouse, he Page 13 1 or she exposes his or her genitals under circumstances in 2 which he or she knows his the conduct is likely to cause 3 affront or alarm in any public place or on the private 4 premises of another or so near thereto as to be seen from such 5 private premises. 6 (b) Indecent exposure is a Class A misdemeanor 7 except a third or subsequent conviction shall be a Class C 8 felony. 9 "§13A-6-70. 10 "(a) Whether or not specifically Unless otherwise 11 stated, it is an element of every offense defined in this 12 article, with the exception of subdivision (a) (3) of Section 13 13A-6-65, is that the sexual act was committed without the 14 consent of the victim. 15 "(b) Lack of consent results from either of the 16 following: 17 "(1) Forcible compulsion; or. 18 "(2) Incapacity to Being incapable of consent; or. 19 "(3) If the offense charged is sexual abuse, any 20 circumstances, in addition to forcible compulsion or 21 incapacity to consent, in which the victim does not expressly 22 or impliedly acquiesce in the actor's conduct. 23 "(c) A person is deemed incapable of consent if he 24 or she is either: 25 "(1) Less than 16 years old; or. 26 "(2) Mentally defective; or Incapacitated. 27 "(3) Mentally incapacitated; or Page 14 1 "(4) Physically helpless. 2 "(d) Consent to engage in sexual intercourse, 3 sodomy, sexual acts, or sexual contact may be communicated by 4 words or actions. The existence of a current or previous 5 marital, dating, social, or sexual relationship with the 6 defendant is not sufficient to constitute consent. Evidence 7 that the victim suggested, requested, or otherwise 8 communicated to the defendant that the defendant use a condom 9 or other birth control device or sexually transmitted disease 10 protection, without additional evidence of consent, is not 11 sufficient to constitute consent. 12 "§13A-6-71. 13 "(a) A person commits the crime of engaging in a sex 14 act with a foster child if he or she is a foster parent and 15 engages in sexual intercourse, as defined by Section 16 13A-6-60(1), or deviant sexual intercourse sodomy, as defined 17 by Section 13A-6-60(2), with a foster child under the age of 18 19 years who is under his or her care or supervision. Engaging 19 in a sex act with a foster child is a Class B felony. 20 "(b) A person commits the crime of engaging in a 21 sexual contact with a foster child if he or she is a foster 22 parent and engages in a sexual contact, pursuant to Section 23 13A-6-60(3), with a foster child under the age of 19 years who 24 is under his or her care or supervision. Engaging in sexual 25 contact with a foster child is a Class C felony. 26 "(c) A person commits the crime of soliciting a sex 27 act or sexual contact with a foster child if he or she is a Page 15 1 foster parent and solicits, persuades, encourages, harasses, 2 or entices a foster child under the age of 19 years to engage 3 in a sex act including, but not limited to, sexual 4 intercourse, as defined by Section 13A-6-30(1), deviate sexual 5 intercourse sodomy, as defined by Section 13A-6-30(2), or 6 sexual contact, as defined by Section 13A-6-60(3) 13A-6-60. 7 The crime of soliciting a sex act or sexual contact with a 8 foster child is a Class A misdemeanor. 9 "(d) Consent is not a defense to a charge under 10 subsections (a), (b), or (c). 11 "(e) For the purposes of this section a foster 12 parent is an individual approved or licensed by the Department 13 of Human Resources or other child placing agencies who 14 provides care and supervision to a foster child under the 15 temporary or permanent custody of the department. 16 "§13A-6-81. 17 "(a) A person commits the crime of a school employee 18 engaging in a sex act with a student under the age of 19 years 19 if he or she is a school employee and engages in sexual 20 intercourse as defined by Section 13A-6-60(1) or deviant 21 sexual intercourse as defined by 13A-6-60(2) or sodomy, as 22 defined in Section 13A-6-60, with a student, regardless of 23 whether the student is male or female. Consent is not a 24 defense to a charge under this section. 25 "(b) The crime of a school employee engaging in a 26 sex act with a student is a Class B felony. 27 "§13A-6-82. Page 16 1 "(a) A person commits the crime of a school employee 2 having sexual contact with a student under the age of 19 years 3 if he or she is a school employee and engages in sexual 4 contact, as defined by Section 13A-6-60(13) 13A-6-60, with a 5 student, regardless of whether the student is male or female. 6 Consent is not a defense to a charge under this section. The 7 crime of a school employee having sexual contact with a 8 student is a Class C felony. 9 "(b) A person commits the crime of a school employee 10 soliciting a sex act with a student under the age of 19 years 11 if he or she is a school employee and solicits, persuades, 12 encourages, harasses, or entices a student to engage in a sex 13 act including, but not limited to, sexual intercourse, as 14 defined by Section 13A-6-60(1), deviate sexual intercourse 15 sodomy, as defined by Section 13A-6-60(2), or sexual contact, 16 as defined by Section 13A-6-60(3) 13A-6-60. The crime of 17 soliciting a student to perform a sex act is a Class A 18 misdemeanor. 19 "§13A-6-122. 20 "In addition to the provisions of Section 13A-6-69, 21 a A person who, knowingly entices, induces, persuades, 22 seduces, prevails, advises, coerces, lures, or orders, or 23 attempts to entice, induce, persuade, seduce, prevail, advise, 24 coerce, lure, or order, by means of a computer, on-line 25 service, Internet service, Internet bulletin board service, 26 weblog, cellular phone, video game system, personal data 27 assistant, telephone, facsimile machine, camera, universal Page 17 1 serial bus drive, writable compact disc, magnetic storage 2 device, floppy disk, or any other electronic communication or 3 storage device, a child who is at least three years younger 4 than the defendant, or another person believed by the 5 defendant to be a child at least three years younger than the 6 defendant to meet with the defendant or any other person for 7 the purpose of engaging in sexual intercourse, deviate sexual 8 intercourse sodomy, sexual contact, sexual performance, 9 obscene sexual performance, sexual conduct, or genital 10 mutilation, or directs a child to engage in sexual 11 intercourse, deviate sexual intercourse sodomy, sexual 12 contact, sexual performance, obscene sexual performance, 13 sexual conduct, or genital mutilation is guilty of electronic 14 solicitation of a child. Any person who violates this section 15 commits a Class B felony. 16 "§13A-6-241. 17 "(a) A person commits the crime of sexual extortion 18 if he or she knowingly causes or attempts to cause another 19 person to engage in sexual intercourse, deviate sexual 20 intercourse sodomy, sexual contact, or in a sexual act or to 21 produce any photograph, digital image, video, film, or other 22 recording of any person, whether recognizable or not, engaged 23 in any act of sadomasochistic abuse, sexual intercourse, 24 deviate sexual intercourse sodomy, sexual excitement, 25 masturbation, breast nudity, genital nudity, or other sexual 26 conduct by transmitting any communication containing Page 18 1 communicating any threat to injure the body, property, or 2 reputation of any person. 3 "(b) Sexual extortion is a Class B felony. 4 "§13A-6-243. 5 "(a)(1) A person commits the crime of directing a 6 child to engage in sexual intercourse or deviate sexual 7 intercourse sodomy if he or she knowingly entices, allures, 8 persuades, induces, or directs any person under the age of 12 9 years to engage in sexual intercourse or deviate sexual 10 intercourse sodomy with another person under the age of 12. 11 "(2) Directing a child to engage in sexual 12 intercourse or deviate sexual intercourse sodomy is a Class A 13 felony. 14 "(b)(1) A person commits the crime of directing a 15 child to engage in sexual contact if he or she knowingly 16 entices, allures, persuades, induces, or directs any person 17 under the age of 12 years to engage in sexual contact with 18 another person under the age of 12. 19 "(2) A violation of this section is a Class C B 20 felony. 21 "§13A-11-9. 22 "(a) A person commits the crime of loitering if he 23 or she does any of the following: 24 "(1) Loiters, remains or wanders about in a public 25 place for the purpose of begging; or. 26 "(2) Loiters or remains in a public place for the 27 purpose of gambling; or. Page 19 1 "(3) Loiters or remains in a public place for the 2 purpose of engaging or soliciting another person to engage in 3 prostitution or deviate sexual intercourse; or sodomy. 4 "(4) Being masked, loiters, remains, or congregates 5 in a public place; or. 6 "(5) Loiters or remains in or about a school, 7 college, or university building or grounds after having been 8 told to leave by any authorized official of such the school, 9 college, or university, and not having any reason or 10 relationship involving custody of or responsibility for a 11 pupil or any other specific, legitimate reason for being 12 there, and not having written permission from a school, 13 college or university administrator; or. 14 "(6) Loiters or remains in any transportation 15 facility, unless specifically authorized to do so, for the 16 purpose of soliciting or engaging in any business, trade, or 17 commercial transactions involving the sale of merchandise or 18 services; or. 19 "(7) Loiters or remains in any place with one or 20 more persons for the purpose of unlawfully using or possessing 21 a dangerous drug. 22 "(b) A person does not commit a crime under 23 subdivision (a)(4) of this section if he or she is going to or 24 from or staying at a masquerade party, or is participating in 25 a public parade or presentation of an educational, religious, 26 or historical character or in an event as defined in 27 subdivision (1) of Section 13A-11-140. Page 20 1 "(c) "Deviate sexual intercourse Sodomy" in 2 subdivision (a)(3) of this section is defined as in 3 subdivision (2) of Section 13A-6-60. 4 "(d) "Dangerous drug" in subdivision (a)(7) of this 5 section means any narcotic, drug, or controlled substance as 6 defined in Chapter 2 of Title 20 of this Code and any schedule 7 incorporated therein. 8 "(e) Loitering is a violation. 9 "§13A-11-32.1. 10 "(a) A person commits the crime of aggravated 11 criminal surveillance if he or she intentionally engages in 12 surveillance of an individual in any place where the 13 individual being observed has a reasonable expectation of 14 privacy, without the prior express or implied consent of the 15 individual being observed, for the purpose of sexual 16 gratification. 17 "(b) Aggravated criminal surveillance is a Class A 18 misdemeanor, except if a person has a prior conviction or 19 adjudication under this section the offense is a Class C 20 felony. 21 "(c) For purposes of determining prior conviction or 22 adjudication under this section, convictions in municipal 23 court shall be included The statute of limitations begins at 24 the time of discovery of the surveillance. 25 "§13A-12-120. 26 "For the purpose of this division, the term 27 "prostitution" shall mean the commission by a person of any Page 21 1 natural or unnatural sexual act, deviate sexual intercourse 2 sodomy, or sexual contact for monetary consideration or other 3 thing of value. 4 "§13A-12-121. 5 "(a) No person shall commit an act of prostitution 6 as defined in Section 13A-12-120. 7 "(b) No person shall solicit, compel, or coerce any 8 person to have sexual intercourse or participate in any 9 natural or unnatural sexual act, deviate sexual intercourse 10 sodomy, or sexual contact for monetary consideration or other 11 thing of marketable value. 12 "(c) No person shall agree to engage in sexual 13 intercourse, deviate sexual intercourse sodomy, or sexual 14 contact with another or participate in the act for monetary 15 consideration or other thing of marketable value and give or 16 accept monetary consideration or other thing of value in 17 furtherance of the agreement. 18 "(d) No person shall knowingly do any of the 19 following: 20 "(1) Cause or aid a person to commit or engage in 21 prostitution. 22 "(2) Procure or solicit patrons for prostitution. 23 "(3) Provide persons or premises for prostitution 24 purposes. 25 "(4) Receive or accept money or other thing of value 26 pursuant to a prior agreement with any person whereby he or Page 22 1 she participates or is to participate in the proceeds of any 2 prostitution activity. 3 "(5) Operate or assist in the operation of a house 4 of prostitution or a prostitution enterprise. 5 "§13A-12-190. 6 "For the purposes of this division, the following 7 terms shall have the meanings respectively ascribed to them by 8 this section: 9 "(1) DISSEMINATE. To transmit, distribute, sell, 10 lend, provide, transfer, or show for monetary consideration or 11 to offer or agree to do the same, including through electronic 12 means. 13 "(2) DISPLAY PUBLICLY. The exposing, placing, 14 posting, exhibiting, or in any fashion displaying in any 15 location, whether public or private, an item in such a manner 16 that it may be readily seen and its content or character 17 distinguished by normal unaided vision viewing it from a 18 public thoroughfare, depot or vehicle. 19 "(3) PUBLIC THOROUGHFARE, DEPOT, or VEHICLE. Any 20 street, highway, park, depot, or transportation platform or 21 other place, whether indoors or out, or any vehicle for public 22 transportation, owned or operated by government, either 23 directly or through a public corporation or authority, or 24 owned or operated by any agency of public transportation that 25 is designed for the use, enjoyment, or transportation of the 26 general public. Page 23 1 "(4) KNOWINGLY. A person knowingly disseminates or 2 publicly displays obscene matter when the person knows the 3 nature of the matter. A person knows the nature of the matter 4 when either of the following circumstances exist: 5 "a. The person is aware of the character and content 6 of the matter; or. 7 "b. The person recklessly disregards circumstances 8 suggesting the character and content of the matter. 9 "(5) SADO-MASOCHISTIC ABUSE. Such term means either 10 of the following: 11 "a. Flagellation or torture, for the purpose of 12 sexual stimulation, by or upon a person who is nude or clad in 13 undergarments or in a revealing or bizarre costume; or. 14 "b. The condition of a person who is nude or clad in 15 undergarments or in a revealing or bizarre costume being 16 fettered, bound, or otherwise physically restrained for the 17 purpose of sexual stimulation. 18 "(6) SEXUAL EXCITEMENT. The condition of human male 19 or female genitals when in a state of sexual stimulation. 20 "(7) SEXUAL INTERCOURSE. Intercourse, real or 21 simulated, whether genital-genital, oral-genital, anal-genital 22 or oral-anal, whether between persons of the same or opposite 23 sex or between a human and an animal. 24 "(8) MASTURBATION. Manipulation, by hand or 25 instrument, of the human genitals, whether one's own or 26 another's for the purpose of sexual stimulation. Page 24 1 "(9) OTHER SEXUAL CONDUCT. Any touching of the 2 genitals, pubic areas, or buttocks of the human male or 3 female, or the breasts of the female, whether alone or between 4 members of the same or opposite sex or between humans and 5 animals in an act of apparent sexual stimulation or 6 gratification. 7 "(10) BREAST NUDITY. The lewd showing of the 8 post-pubertal human female breasts below a point immediately 9 above the top of the areola. 10 "(11) GENITAL NUDITY. The lewd showing of the 11 genitals or pubic area. 12 "(12) MATTER. Any book, magazine, newspaper, or 13 other printed material, or any picture, photograph, motion 14 picture, video cassette, tape, record, digital video disc 15 (DVD), video compilation, or electronic depiction in a 16 comparable format, or an image, file, download, or other 17 content stored, or reproduced by using a computer or 18 electronic device or other digital storage, or any other 19 thing, articles, or materials that either are or contain a 20 photographic or other visual depiction of a live act, 21 performance, or event. 22 "(13) OBSCENE. a. When used to describe any matter 23 that contains a visual reproduction of breast nudity, such 24 term means matter that the term shall include all of the 25 following: 26 "1. Applying contemporary local community standards, 27 on the whole, appeals to the prurient interest; and. Page 25 1 "2. Is patently offensive; and. 2 "3. On the whole, lacks serious literary, artistic, 3 political, or scientific value. 4 "b. When used to describe matter that is a depiction 5 of an act of sado-masochistic abuse, sexual intercourse, 6 sexual excitement, masturbation, genital nudity, or other 7 sexual conduct, such the term means matter containing such a 8 visual reproduction that itself lacks serious literary, 9 artistic, political, or scientific value. 10 "(14) LOCAL COMMUNITY. The judicial circuit in which 11 the indictment is brought. 12 "(15) VISUAL DEPICTION. A portrayal, representation, 13 illustration, image, likeness, or other thing that creates a 14 sensory impression, whether an original, duplicate, or 15 reproduction. 16 "(16) SEPARATE OFFENSE. The depiction of an 17 individual less than 17 years of age that violates this 18 division shall constitute a separate offense for each single 19 visual depiction. 20 "§13A-12-192. 21 "(a) Any person who knowingly possesses with intent 22 to disseminate any obscene matter that contains a visual 23 depiction of a person under the age of 17 years engaged in any 24 act of sado-masochistic abuse, sexual intercourse, sexual 25 excitement, masturbation, breast nudity, genital nudity, or 26 other sexual conduct shall be guilty of a Class B felony. 27 Possession of three or more copies of the same visual Page 26 1 depiction contained in obscene matter is prima facie evidence 2 of possession with intent to disseminate the same Any transfer 3 of the visual depiction from any electronic device to any 4 other device, program, application, or any other place with 5 storage capability which can be made available or is 6 accessible by other users, is prima facie evidence of 7 possession with intent to disseminate. 8 "(b) Any person who knowingly possesses any obscene 9 matter that contains a visual depiction of a person under the 10 age of 17 years engaged in any act of sado-masochistic abuse, 11 sexual intercourse, sexual excitement, masturbation, breast 12 nudity, genital nudity, or other sexual conduct shall be 13 guilty of a Class C felony. 14 "§15-3-5. 15 "(a) There is no limitation of time within which a 16 prosecution must be commenced for any of the following 17 offenses: 18 "(1) Any capital offense;. 19 "(2) Any felony involving the use, attempted use, or 20 threat of, violence to a person;. 21 "(3) Any felony involving serious physical injury or 22 death of a person;. 23 "(4) Any sex offense pursuant to Section 15-20A-5 24 involving a victim under 16 years of age, regardless of 25 whether it involves force or, serious physical injury, or 26 death;. 27 "(5) Any felony involving arson of any type;. Page 27 1 "(6) Any felony involving forgery of any type;. 2 "(7) Any felony involving counterfeiting; and. 3 "(8) Any felony involving drug trafficking. 4 "(b) The amendments made by this act shall apply to 5 both of the following: 6 "(1) To all crimes committed after January 7, 1985; 7 and. 8 "(2) To all crimes committed before January 7, 1985, 9 for which no statute of limitations provided under 10 pre-existing law has run as of January 7, 1985. 11 "(c) Nothing herein shall be construed to mean that 12 the adoption of this act indicates that any former statute of 13 limitations applying to capital offenses is invalid as the 14 result of any decision of any court invalidating the capital 15 punishment statutes of the State of Alabama. 16 "§15-20A-5. 17 "For the purposes of this chapter, a sex offense 18 includes any of the following offenses: 19 "(1) Rape in the first degree, as provided by 20 Section 13A-6-61. 21 "(2) Rape in the second degree, as provided by 22 Section 13A-6-62. The sentencing court may exempt a juvenile 23 sex offender adjudicated delinquent of a violation of rape in 24 the second degree from registration and notification after the 25 juvenile has received treatment and obtained a risk assessment 26 pursuant to Section 15-20A-26. Page 28 1 "(3) Sodomy in the first degree, as provided by 2 Section 13A-6-63. 3 "(4) Sodomy in the second degree, as provided by 4 Section 13A-6-64. The sentencing court may exempt a juvenile 5 sex offender adjudicated delinquent of a violation of sodomy 6 in the second degree from registration and notification after 7 the juvenile has received treatment and obtained a risk 8 assessment pursuant to Section 15-20A-26. 9 "(5) Sexual misconduct, as provided by Section 10 13A-6-65, provided that on a first conviction or adjudication 11 the sex offender is only subject to registration and 12 verification pursuant to this chapter. On a second or 13 subsequent conviction or adjudication of a sex offense, if the 14 second or subsequent conviction or adjudication does not arise 15 out of the same set of facts and circumstances as the first 16 conviction or adjudication of a sex offense, the sex offender 17 shall comply with all requirements of this chapter. The 18 sentencing court may exempt from this chapter a juvenile sex 19 offender adjudicated delinquent of a violation of sexual 20 misconduct from registration and notification after the 21 juvenile has received treatment and obtained a risk assessment 22 pursuant to Section 15-20A-26. 23 "(6) Sexual torture, as provided by Section 24 13A-6-65.1. 25 "(7) Sexual abuse in the first degree, as provided 26 by Section 13A-6-66. Page 29 1 "(8) Sexual abuse in the second degree, as provided 2 by Section 13A-6-67. The sentencing court may exempt a 3 juvenile sex offender adjudicated delinquent of a violation of 4 sexual abuse in the second degree from registration and 5 notification after the juvenile has received treatment and 6 obtained a risk assessment pursuant to Section 15-20A-26. 7 "(9) Indecent exposure, as provided by Section 8 13A-6-68, provided that on a first conviction or adjudication 9 of a sex offense, the sex offender is only subject to 10 registration and verification pursuant to this chapter. On a 11 second or subsequent conviction or adjudication of a sex 12 offense, if the second or subsequent conviction or 13 adjudication does not arise out of the same set of facts and 14 circumstances as the first conviction or adjudication, the sex 15 offender shall comply with all requirements of this chapter. 16 The sentencing court may exempt from this chapter a juvenile 17 sex offender adjudicated delinquent of a violation of indecent 18 exposure from registration and notification after the juvenile 19 has received treatment and obtained a risk assessment pursuant 20 to Section 15-20A-26. 21 "(10) Enticing a child to enter a vehicle, room, 22 house, office, or other place for immoral purposes, as 23 provided by Section 13A-6-69. 24 "(11) Sexual abuse of a child less than 12 years 25 old, as provided by Section 13A-6-69.1. 26 "(12) Promoting prostitution in the first degree, as 27 provided by Section 13A-12-111. Page 30 1 "(13) Promoting prostitution in the second degree, 2 as provided by Section 13A-12-112. 3 "(14) Violation of the Alabama Child Pornography 4 Act, as provided by Section 13A-12-191, 13A-12-192, 5 13A-12-196, or 13A-12-197. The sentencing court may exempt 6 from this chapter a juvenile sex offender adjudicated 7 delinquent of a violation of the Alabama Child Pornography Act 8 from registration and notification after the juvenile has been 9 counseled on the dangers of the conduct for which he or she 10 was adjudicated delinquent received treatment and obtained a 11 risk assessment pursuant to Section 15-20A-26. 12 "(15) Unlawful imprisonment in the first degree, as 13 provided by Section 13A-6-41, if the victim of the offense is 14 a minor, and the record of adjudication or conviction reflects 15 the intent of the unlawful imprisonment was to abuse the minor 16 sexually. 17 "(16) Unlawful imprisonment in the second degree, as 18 provided by Section 13A-6-42, if the victim of the offense is 19 a minor, and the record of adjudication or conviction reflects 20 the intent of the unlawful imprisonment was to abuse the minor 21 sexually. 22 "(17) Kidnapping in the first degree, as provided by 23 subdivision (4) of subsection (a) of Section 13A-6-43, if the 24 intent of the abduction is to violate or abuse the victim 25 sexually. Page 31 1 "(18) Kidnapping of a minor, except by a parent, 2 guardian, or custodian, as provided by Section 13A-6-43 or 13A-6-44. 3 "(19) Incest, as provided by Section 13A-13-3. 4 "(20) Transmitting obscene material to a child by 5 computer, as provided by Section 13A-6-111. 6 "(21) School employee engaging in a sex act or 7 deviant sexual intercourse with a student, or, having sexual 8 contact, or soliciting a sex act or sexual contact with a 9 student as provided by Sections 13A-6-81 and 13A-6-82. 10 "(22) Foster parent engaging in a sex act, having 11 sexual contact, or soliciting a sex act or sexual contact with 12 a foster child as provided by Section 13A-6-71. 13 "(23) Facilitating solicitation of unlawful sexual 14 conduct with a child, as provided by Section 13A-6-121. 15 "(24) Electronic solicitation of a child, as 16 provided by Section 13A-6-122. 17 "(25) Facilitating the on-line solicitation of a 18 child, as provided by Section 13A-6-123. 19 "(26) Traveling to meet a child for an unlawful sex 20 act, as provided by Section 13A-6-124. 21 "(27) Facilitating the travel of a child for an 22 unlawful sex act, as provided by Section 13A-6-125. 23 "(28) Human trafficking in the first degree, as 24 provided by Section 13A-6-152, provided that the offense 25 involves sexual servitude. Page 32 1 "(29) Human trafficking in the second degree, as 2 provided by Section 13A-6-153, provided that the offense 3 involves sexual servitude. 4 "(30) Custodial sexual misconduct, as provided by 5 Section 14-11-31. 6 "(31) Sexual extortion, as provided by Section 7 13A-6-241. 8 "(32) Directing a child to engage in a sex act, as 9 provided in Section 13A-6-243. 10 "(33) Any offense which is the same as or equivalent 11 to any offense set forth above as the same existed and was 12 defined under the laws of this state existing at the time of 13 such conviction, specifically including, but not limited to, 14 crime against nature, as provided by Section 13-1-110; rape, 15 as provided by Sections 13-1-130 and 13-1-131; carnal 16 knowledge of a woman or girl, as provided by Sections 13-1-132 17 through 13-1-135, or attempting to do so, as provided by 18 Section 13-1-136; indecent molestation of children, as defined 19 and provided by Section 13-1-113; indecent exposure, as 20 provided by Section 13-1-111; incest, as provided by Section 21 13-8-3; offenses relative to obscene prints and literature, as 22 provided by Sections 13-7-160 through 13-7-175, inclusive; 23 employing, harboring, procuring or using a girl over 10 and 24 under 18 years of age for the purpose of prostitution or 25 sexual intercourse, as provided by Section 13-7-1; seduction, 26 as defined and provided by Section 13-1-112; a male person 27 peeping into a room occupied by a female, as provided by Page 33 1 Section 13-6-6; assault with intent to ravish, as provided by 2 Section 13-1-46; and soliciting a child by computer, as 3 provided by Section 13A-6-110. 4 "(34) Any solicitation, attempt, or conspiracy to 5 commit any of the offenses listed in subdivisions (1) to (33), 6 inclusive. 7 "(35) Any crime committed in Alabama or any other 8 state, the District of Columbia, any United States territory, 9 or a federal, military, Indian, or foreign country 10 jurisdiction which, if it had been committed in this state 11 under the current provisions of law, would constitute an 12 offense listed in subdivisions (1) to (34), inclusive. 13 "(36) Any offense specified by Title I of the 14 federal Adam Walsh Child Protection and Safety Act of 2006 15 (Pub. L. 109-248, the Sex Offender Registration and 16 Notification Act (SORNA)). 17 "(37) Any crime committed in another state, the 18 District of Columbia, any United States territory, or a 19 federal, military, Indian, or foreign country jurisdiction if 20 that jurisdiction also requires that anyone convicted of that 21 crime register as a sex offender in that jurisdiction. 22 "(38) Any offender determined in any jurisdiction to 23 be a sex offender shall be considered a sex offender in this 24 state. 25 "(39) The foregoing notwithstanding, any crime 26 committed in any jurisdiction which, irrespective of the 27 specific description or statutory elements thereof, is in any Page 34 1 way characterized or known as rape, carnal knowledge, sodomy, 2 sexual assault, sexual battery, criminal sexual conduct, 3 criminal sexual contact, sexual abuse, continuous sexual 4 abuse, sexual torture, solicitation of a child, enticing or 5 luring a child, child pornography, lewd and lascivious 6 conduct, taking indecent liberties with a child, molestation 7 of a child, criminal sexual misconduct, video voyeurism, or 8 there has been a finding of sexual motivation. 9 "(40) Any crime not listed in this section wherein 10 the underlying felony is an element of the offense and listed 11 in subdivisions (1) to (39), inclusive. 12 "(41) Any other offense not provided for in this 13 section wherein where there is a finding of sexual motivation 14 as provided by Section 15-20A-6. 15 "§15-20A-44. 16 "(a) The Secretary of the Alabama State Law 17 Enforcement Agency shall promulgate adopt rules establishing 18 an administrative hearing for persons who are only made 19 subject to this chapter pursuant to subdivision (37) (35) of 20 Section 15-20A-5. 21 "(b) The Secretary of the Alabama State Law 22 Enforcement Agency shall promulgate adopt rules setting forth 23 a listing of offenses from other jurisdictions that are to be 24 considered criminal sex offenses under subdivision (37) (35) 25 of Section 15-20A-5. Thereafter, any individual convicted of 26 any offense set forth in the listing shall immediately be Page 35 1 subject to this chapter and shall not be entitled to an 2 administrative hearing as provided in subsection (a). 3 "(c) The Secretary of the Alabama State Law 4 Enforcement Agency shall have the authority to promulgate any 5 rules as are necessary to implement and enforce this chapter. 6 "§15-23-101. 7 "When a person has been charged with the crime of 8 rape, sodomy, or, sexual misconduct, sexual torture, sexual 9 abuse, assault by bodily fluids, or any other crime in which 10 the victim was compelled to engage in sexual activity by force 11 or threat of force, and it appears from the nature of the 12 charge that the transmission of body fluids from one person to 13 another may have been involved, upon the request of the 14 alleged victim or the parent or guardian of an alleged a minor 15 victim, the district attorney shall file a motion with the 16 court for an order requiring the person charged to submit to a 17 test for any sexually transmitted disease. 18 "§15-23-102. 19 "(a)(1) If the district attorney files a motion 20 under Section 15-23-101, the court shall order the person 21 charged to submit to testing if the court determines there is 22 probable cause to believe that the person charged committed 23 the crime of rape, sodomy, or, sexual misconduct, sexual 24 torture, sexual abuse, assault by bodily fluids, or any other 25 crime where the victim was compelled to engage in sexual 26 activity by force or threat of force and the transmission of 27 body fluids was involved. Page 36 1 "(2) If a warrant, information, or indictment has 2 been issued and the defendant is in custody or has been served 3 with the warrant, information, or indictment, the test shall 4 be performed within 48 hours of service of the court order 5 requiring the defendant to submit to testing. 6 "(b) When a test is ordered under Section 15-23-101, 7 the alleged victim of the crime or a parent or guardian of the 8 alleged minor victim shall designate an attending physician 9 who has agreed in advance to accept the victim as a patient to 10 receive information on behalf of the alleged victim. 11 "(c) If any sexually transmitted disease test 12 results in a negative reaction, the court shall order the 13 person to submit to any follow-up tests at the intervals and 14 in the manner as shall be determined by the State Board of 15 Health. 16 "(d) The result of any test ordered under this 17 section is not a public record and shall be available only to 18 the following: 19 "(1) The alleged victim. 20 "(2) The parent or guardian of the alleged minor 21 victim. 22 "(3) The attending physician of the alleged victim. 23 "(4) The person tested. 24 "(e) If any sexually transmitted disease test 25 ordered under this section results in a positive reaction, the 26 individual subject to the test shall receive post-test 27 counseling. Counseling and referral for appropriate health Page 37 1 care, testing, and support services as directed by the State 2 Health Officer shall be provided to the alleged victim at the 3 request of the alleged victim or the parent or guardian of the 4 alleged minor victim." 5 Section 2. Although this bill would have as its 6 purpose or effect the requirement of a new or increased 7 expenditure of local funds, the bill is excluded from further 8 requirements and application under Amendment 621, now 9 appearing as Section 111.05 of the Official Recompilation of 10 the Constitution of Alabama of 1901, as amended, because the 11 bill defines a new crime or amends the definition of an 12 existing crime. 13 Section 3. This act shall become effective on the 14 first day of the third month following its passage and 15 approval by the Governor, or its otherwise becoming law. Page 38

1 SB320 2 197764-5 3 By Senator Figures 4 RFD: Judiciary 5 First Read: 18-APR-19 Page 0 SB320 1 SB320 2 3 4 ENROLLED, An Act, 5 Relating to sexual offenses; to amend Sections 6 13A-5-6, 13A-6-60, 13A-6-61, 13A-6-62, 13A-6-63, 13A-6-64, 7 13A-6-65, 13A-6-65.1, 13A-6-66, 13A-6-67, 13A-6-68, 13A-6-70, 8 13A-6-71, 13A-6-81, 13A-6-82, as corrected by Act 2018-406, 9 the Codification Act, 2018 Regular Session, 13A-6-122, 10 13A-6-241, 13A-6-243, 13A-11-9, 13A-11-32.1, 13A-12-120, 11 13A-12-121, 13A-12-190, 13A-12-192, 15-3-5, 15-20A-5, and 12 15-20A-44, as last amended by Act 2018-528, 2018 Regular 13 Session, 15-23-101, and 15-23-102, Code of Alabama 1975, to 14 revise certain definitions and sexual offenses; to expand the 15 definition of forcible compulsion; to provide that certain 16 sexual contact can be an offense under sexual misconduct; to 17 provide additional offenses for sexual torture; to make 18 technical corrections; and in connection therewith would have 19 as its purpose or effect the requirement of a new or increased 20 expenditure of local funds within the meaning of Amendment 621 21 of the Constitution of Alabama of 1901, now appearing as 22 Section 111.05 of the Official Recompilation of the 23 Constitution of Alabama of 1901, as amended. 24 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: Page 1 SB320 1 Section 1. Sections 13A-5-6, 13A-6-60, 13A-6-61, 2 13A-6-62, 13A-6-63, 13A-6-64, 13A-6-65, 13A-6-65.1, 13A-6-66, 3 13A-6-67, 13A-6-68, 13A-6-70, 13A-6-71, 13A-6-81, 13A-6-82, as 4 corrected by Act 2018-406, the Codification Act, 2018 Regular 5 Session, 13A-6-122, 13A-6-241, 13A-6-243, 13A-11-9, 6 13A-11-32.1, 13A-12-120, 13A-12-121, 13A-12-190, 13A-12-192, 7 15-3-5, 15-20A-5 and 15-20A-44, as last amended by Act 8 2018-528, 2018 Regular Session, 15-23-101, and 15-23-102, Code 9 of Alabama 1975, are amended to read as follows: 10 "§13A-5-6. 11 "(a) Sentences for felonies shall be for a definite 12 term of imprisonment, which imprisonment includes hard labor, 13 within the following limitations: 14 "(1) For a Class A felony, for life or not more than 15 99 years or less than 10 years. 16 "(2) For a Class B felony, not more than 20 years or 17 less than 2 years. 18 "(3) For a Class C felony, not more than 10 years or 19 less than 1 year and 1 day and must be in accordance with 20 subsection (b) of Section 15-18-8 unless sentencing is 21 pursuant to Section 13A-5-9 or the offense is a sex offense 22 pursuant to Section 15-20A-5. 23 "(4) For a Class D felony, not more than 5 years or 24 less than 1 year and 1 day and must be in accordance with 25 subsection (b) of Section 15-18-8. Page 2 SB320 1 "(5) For a Class A felony in which a firearm or 2 deadly weapon was used or attempted to be used in the 3 commission of the felony, or a Class A felony sex offense 4 involving a child as defined in Section 15-20A-4(26), not less 5 than 20 years. 6 "(6) For a Class B or C felony in which a firearm or 7 deadly weapon was used or attempted to be used in the 8 commission of the felony, or a Class B felony sex offense 9 involving a child as defined in Section 15-20A-4(26), not less 10 than 10 years. 11 "(b) The actual time of release within the 12 limitations established by subsection (a) of this section 13 shall be determined under procedures established elsewhere by 14 law. 15 "(c) In addition to any penalties heretofore or 16 hereafter provided by law, in all cases where an offender is 17 designated as a sexually violent predator pursuant to Section 18 15-20A-19, or where an offender is convicted of a Class A 19 felony sex offense involving a child as defined in Section 20 15-20A-4(26), and is sentenced to a county jail or the Alabama 21 Department of Corrections, the sentencing judge shall impose 22 an additional penalty of not less than 10 years of 23 post-release supervision to be served upon the defendant's 24 release from incarceration. Page 3 SB320 1 "(d) In addition to any penalties heretofore or 2 hereafter provided by law, in all cases where an offender is 3 convicted of a sex offense pursuant to Section 13A-6-61, 4 13A-6-63, or 13A-6-65.1, when the defendant was 21 years of 5 age or older and the victim was six years of age or less at 6 the time the offense was committed, the defendant shall be 7 sentenced to life imprisonment without the possibility of 8 parole. 9 "§13A-6-60. 10 "The following definitions apply in this article: 11 "(1) (4) SEXUAL INTERCOURSE. Such term has its 12 ordinary meaning and occurs upon any penetration, however 13 slight; emission is not required. 14 "(3) SEXUAL CONTACT. Any touching of the sexual or 15 other intimate parts of a person not married to the actor, 16 done for the purpose of gratifying the sexual desire of either 17 party. The term does not require skin to skin contact. 18 "(2) (5) DEVIATE SEXUAL INTERCOURSE. Any act of 19 sexual gratification between persons not married to each other 20 involving the sex organs of one person and the mouth or anus 21 of another SODOMY. Any sexual act involving the genitals of 22 one person and the mouth or anus of another person. 23 "(4) (2) FEMALE. Any female person. INCAPACITATED. 24 Such The term includes any of the following: Page 4 SB320 1 "a. A person who suffers from a mental or 2 developmental disease or disability which renders the person 3 incapable of appraising the nature of his or her conduct. 4 "b. A person is temporarily incapable of appraising 5 or controlling his or her conduct due to the influence of a 6 narcotic, anesthetic, or intoxicating substance and the 7 condition was known or should have been reasonably known to 8 the offender. 9 "c. A person who is unable to give consent or who is 10 unable to communicate an unwillingness to an act because the 11 person is unconscious, asleep, or is otherwise physically 12 limited or unable to communicate. 13 "(5) MENTALLY DEFECTIVE. Such term means that a 14 person suffers from a mental disease or defect which renders 15 him incapable of appraising the nature of his conduct. 16 "(6) MENTALLY INCAPACITATED. Such term means that a 17 person is rendered temporarily incapable of appraising or 18 controlling his conduct owing to the influence of a narcotic 19 or intoxicating substance administered to him without his 20 consent, or to any other incapacitating act committed upon him 21 without his consent. 22 "(7) PHYSICALLY HELPLESS. Such term means that a 23 person is unconscious or for any other reason is physically 24 unable to communicate unwillingness to an act. Page 5 SB320 1 "(8) (1) FORCIBLE COMPULSION. Physical force that 2 overcomes earnest resistance or a threat, express or implied, 3 that places a person in fear of immediate death or serious 4 physical injury to himself or another person Use or threatened 5 use, whether express or implied, of physical force, violence, 6 confinement, restraint, physical injury, or death to the 7 threatened person or to another person. Factors to be 8 considered in determining an implied threat include, but are 9 not limited to, the respective ages and sizes of the victim 10 and the accused; the respective mental and physical conditions 11 of the victim and the accused; the atmosphere and physical 12 setting in which the incident was alleged to have taken place; 13 the extent to which the accused may have been in a position of 14 authority, domination, or custodial control over the victim; 15 or whether the victim was under duress. Forcible compulsion 16 does not require proof of resistance by the victim. 17 "§13A-6-61. 18 "(a) A person commits the crime of rape in the first 19 degree if he or she does any of the following: 20 "(1) He or she engages Engages in sexual intercourse 21 with a member of the opposite sex another person by forcible 22 compulsion; or. 23 "(2) He or she engages Engages in sexual intercourse 24 with a member of the opposite sex another person who is Page 6 SB320 1 incapable of consent by reason of being physically helpless or 2 mentally incapacitated; or. 3 "(3) He or she, being Being 16 years old or older, 4 engages in sexual intercourse with a member of the opposite 5 sex another person who is less than 12 years old. 6 "(b) Rape in the first degree is a Class A felony. 7 "§13A-6-62. 8 "(a) A person commits the crime of rape in the 9 second degree if:, 10 "(1) Being being 16 years old or older, he or she 11 engages in sexual intercourse with a member of the opposite 12 sex another person who is 12 years old or older, but less than 13 16 years old and more than 12 years old; provided, however, 14 the actor is at least two years older than the member of the 15 opposite sex other person. 16 "(2) He or she engages in sexual intercourse with a 17 member of the opposite sex who is incapable of consent by 18 reason of being mentally defective. 19 "(b) Rape in the second degree is a Class B felony. 20 "§13A-6-63. 21 "(a) A person commits the crime of sodomy in the 22 first degree if he or she does any of the following: 23 "(1) He engages Engages in deviate sexual 24 intercourse sodomy with another person by forcible compulsion; 25 or. Page 7 SB320 1 "(2) He engages Engages in deviate sexual 2 intercourse sodomy with a another person who is incapable of 3 consent by reason of being physically helpless or mentally 4 incapacitated; or. 5 "(3) He, being Being 16 years old or older, engages 6 in deviate sexual intercourse sodomy with a person who is less 7 than 12 years old. 8 "(b) Sodomy in the first degree is a Class A felony. 9 "§13A-6-64. 10 "(a) A person commits the crime of sodomy in the 11 second degree if:, 12 "(1) He, being 16 years old or older, he or she 13 engages in deviate sexual intercourse sodomy with another 14 person 12 years old or older, but less than 16 years old and 15 more than 12 years old.; provided, however, the actor is at 16 least two years older than the other person. 17 "(2) He engages in deviate sexual intercourse with a 18 person who is incapable of consent by reason of being mentally 19 defective. 20 "(b) Sodomy in the second degree is a Class B 21 felony. 22 "§13A-6-65. 23 "(a) A person commits the crime of sexual misconduct 24 if he or she does any of the following: Page 8 SB320 1 "(1) Being a male, he engages Engages in sexual 2 intercourse with a female another person without his or her 3 consent, under circumstances other than those covered by 4 Sections 13A-6-61 and 13A-6-62; or with her consent where 5 consent was obtained by the use of any fraud or artifice; or. 6 "(2) Being a female, she engages in sexual 7 intercourse with a male without his consent; or 8 "(3)(2) He or she engages Engages in deviate sexual 9 intercourse sodomy with another person, without his or her 10 consent, under circumstances other than those covered by 11 Sections 13A-6-63 and 13A-6-64.; Consent is no defense to a 12 prosecution under this subdivision or with consent where 13 consent was obtained by the use of fraud or artifice. 14 "(3) Engages in sexual contact with another person 15 without his or her consent under circumstances other than 16 those under Sections 13A-6-66, 13A-6-67, and 13A-6-69.1; or 17 with consent where consent was obtained by the use of fraud or 18 artifice. 19 "(b) Sexual misconduct is a Class A misdemeanor. 20 "§13A-6-65.1. 21 "(a) A person commits the crime of sexual torture if 22 he or she does any of the following: 23 "(1) By penetrating Penetrates the vagina or, anus, 24 or mouth of another person with an inanimate object, by 25 forcible compulsion, with the intent to sexually torture or Page 9 SB320 1 to, sexually abuse, or to gratify the sexual desire of either 2 party. 3 "(2) By penetrating Penetrates the vagina or, anus, 4 or mouth of a person who is incapable of consent by reason of 5 physical helplessness or mental incapacity being 6 incapacitated, with an inanimate object, with the intent to 7 sexually torture or to, sexually abuse, or to gratify the 8 sexual desire of either party. 9 "(3) By penetrating Penetrates the vagina or, anus, 10 or mouth of a person who is less than 12 years old, with an 11 inanimate object, by a person who is 16 years old or older 12 with the intent to sexually torture or to, sexually abuse, or 13 to gratify the sexual desire of either party. 14 "(4) By inflicting physical injury, including, but 15 not limited to, burning, crushing, wounding, mutilating, or 16 assaulting the sex organs or intimate parts of another person, 17 with the intent to sexually torture, sexually abuse, or to 18 gratify the sexual desire of either party. 19 "(b) The crime of sexual torture is a Class A 20 felony. 21 "§13A-6-66. 22 "(a) A person commits the crime of sexual abuse in 23 the first degree if he or she does either of the following: 24 "(1) He subjects Subjects another person to sexual 25 contact by forcible compulsion; or. Page 10 SB320 1 "(2) He subjects Subjects another person to sexual 2 contact who is incapable of consent by reason of being 3 physically helpless or mentally incapacitated. 4 "(b) Sexual abuse in the first degree is a Class C 5 felony. 6 "§13A-6-67. 7 "(a) A person commits the crime of sexual abuse in 8 the second degree if he or she does either of the following: 9 "(1) He subjects Subjects another person to sexual 10 contact who is incapable of unable to consent by reason of 11 some factor other than being less than 16 years old; or. 12 "(2) He, being Being 19 years old or older, subjects 13 another person to sexual contact who is 12 years old or older, 14 but less than 16 years old , but more than 12 years old. 15 "(b) Sexual abuse in second degree is a Class A 16 misdemeanor, except that if a person commits a second or 17 subsequent offense of sexual abuse in the second degree within 18 one year of another sexual offense, the offense is a Class C 19 felony. 20 "§13A-6-68. 21 (a) A person commits the crime of indecent exposure 22 if, with intent to arouse or gratify sexual desire of himself 23 or herself, or of any person other than his or her spouse, he 24 or she exposes his or her genitals under circumstances in 25 which he or she knows his the conduct is likely to cause Page 11 SB320 1 affront or alarm in any public place or on the private 2 premises of another or so near thereto as to be seen from such 3 private premises. 4 (b) Indecent exposure is a Class A misdemeanor 5 except a third or subsequent conviction shall be a Class C 6 felony. 7 "§13A-6-70. 8 "(a) Whether or not specifically Unless otherwise 9 stated, it is an element of every offense defined in this 10 article, with the exception of subdivision (a) (3) of Section 11 13A-6-65, is that the sexual act was committed without the 12 consent of the victim. 13 "(b) Lack of consent results from either of the 14 following: 15 "(1) Forcible compulsion; or. 16 "(2) Incapacity to Being incapable of consent; or. 17 "(3) If the offense charged is sexual abuse, any 18 circumstances, in addition to forcible compulsion or 19 incapacity to consent, in which the victim does not expressly 20 or impliedly acquiesce in the actor's conduct. 21 "(c) A person is deemed incapable of consent if he 22 or she is either: 23 "(1) Less than 16 years old; or. 24 "(2) Mentally defective; or Incapacitated. 25 "(3) Mentally incapacitated; or Page 12 SB320 1 "(4) Physically helpless. 2 "(d) Consent to engage in sexual intercourse, 3 sodomy, sexual acts, or sexual contact may be communicated by 4 words or actions. The existence of a current or previous 5 marital, dating, social, or sexual relationship with the 6 defendant is not sufficient to constitute consent. Evidence 7 that the victim suggested, requested, or otherwise 8 communicated to the defendant that the defendant use a condom 9 or other birth control device or sexually transmitted disease 10 protection, without additional evidence of consent, is not 11 sufficient to constitute consent. 12 "§13A-6-71. 13 "(a) A person commits the crime of engaging in a sex 14 act with a foster child if he or she is a foster parent and 15 engages in sexual intercourse, as defined by Section 16 13A-6-60(1), or deviant sexual intercourse sodomy, as defined 17 by Section 13A-6-60(2), with a foster child under the age of 18 19 years who is under his or her care or supervision. Engaging 19 in a sex act with a foster child is a Class B felony. 20 "(b) A person commits the crime of engaging in a 21 sexual contact with a foster child if he or she is a foster 22 parent and engages in a sexual contact, pursuant to Section 23 13A-6-60(3), with a foster child under the age of 19 years who 24 is under his or her care or supervision. Engaging in sexual 25 contact with a foster child is a Class C felony. Page 13 SB320 1 "(c) A person commits the crime of soliciting a sex 2 act or sexual contact with a foster child if he or she is a 3 foster parent and solicits, persuades, encourages, harasses, 4 or entices a foster child under the age of 19 years to engage 5 in a sex act including, but not limited to, sexual 6 intercourse, as defined by Section 13A-6-30(1), deviate sexual 7 intercourse sodomy, as defined by Section 13A-6-30(2), or 8 sexual contact, as defined by Section 13A-6-60(3) 13A-6-60. 9 The crime of soliciting a sex act or sexual contact with a 10 foster child is a Class A misdemeanor. 11 "(d) Consent is not a defense to a charge under 12 subsections (a), (b), or (c). 13 "(e) For the purposes of this section a foster 14 parent is an individual approved or licensed by the Department 15 of Human Resources or other child placing agencies who 16 provides care and supervision to a foster child under the 17 temporary or permanent custody of the department. 18 "§13A-6-81. 19 "(a) A person commits the crime of a school employee 20 engaging in a sex act with a student under the age of 19 years 21 if he or she is a school employee and engages in sexual 22 intercourse as defined by Section 13A-6-60(1) or deviant 23 sexual intercourse as defined by 13A-6-60(2) or sodomy, as 24 defined in Section 13A-6-60, with a student, regardless of Page 14 SB320 1 whether the student is male or female. Consent is not a 2 defense to a charge under this section. 3 "(b) The crime of a school employee engaging in a 4 sex act with a student is a Class B felony. 5 "§13A-6-82. 6 "(a) A person commits the crime of a school employee 7 having sexual contact with a student under the age of 19 years 8 if he or she is a school employee and engages in sexual 9 contact, as defined by Section 13A-6-60(13) 13A-6-60, with a 10 student, regardless of whether the student is male or female. 11 Consent is not a defense to a charge under this section. The 12 crime of a school employee having sexual contact with a 13 student is a Class C felony. 14 "(b) A person commits the crime of a school employee 15 soliciting a sex act with a student under the age of 19 years 16 if he or she is a school employee and solicits, persuades, 17 encourages, harasses, or entices a student to engage in a sex 18 act including, but not limited to, sexual intercourse, as 19 defined by Section 13A-6-60(1), deviate sexual intercourse 20 sodomy, as defined by Section 13A-6-60(2), or sexual contact, 21 as defined by Section 13A-6-60(3) 13A-6-60. The crime of 22 soliciting a student to perform a sex act is a Class A 23 misdemeanor. 24 "§13A-6-122. Page 15 SB320 1 "In addition to the provisions of Section 13A-6-69, 2 a A person who, knowingly entices, induces, persuades, 3 seduces, prevails, advises, coerces, lures, or orders, or 4 attempts to entice, induce, persuade, seduce, prevail, advise, 5 coerce, lure, or order, by means of a computer, on-line 6 service, Internet service, Internet bulletin board service, 7 weblog, cellular phone, video game system, personal data 8 assistant, telephone, facsimile machine, camera, universal 9 serial bus drive, writable compact disc, magnetic storage 10 device, floppy disk, or any other electronic communication or 11 storage device, a child who is at least three years younger 12 than the defendant, or another person believed by the 13 defendant to be a child at least three years younger than the 14 defendant to meet with the defendant or any other person for 15 the purpose of engaging in sexual intercourse, deviate sexual 16 intercourse sodomy, sexual contact, sexual performance, 17 obscene sexual performance, sexual conduct, or genital 18 mutilation, or directs a child to engage in sexual 19 intercourse, deviate sexual intercourse sodomy, sexual 20 contact, sexual performance, obscene sexual performance, 21 sexual conduct, or genital mutilation is guilty of electronic 22 solicitation of a child. Any person who violates this section 23 commits a Class B felony. 24 "§13A-6-241. Page 16 SB320 1 "(a) A person commits the crime of sexual extortion 2 if he or she knowingly causes or attempts to cause another 3 person to engage in sexual intercourse, deviate sexual 4 intercourse sodomy, sexual contact, or in a sexual act or to 5 produce any photograph, digital image, video, film, or other 6 recording of any person, whether recognizable or not, engaged 7 in any act of sadomasochistic abuse, sexual intercourse, 8 deviate sexual intercourse sodomy, sexual excitement, 9 masturbation, breast nudity, genital nudity, or other sexual 10 conduct by transmitting any communication containing 11 communicating any threat to injure the body, property, or 12 reputation of any person. 13 "(b) Sexual extortion is a Class B felony. 14 "§13A-6-243. 15 "(a)(1) A person commits the crime of directing a 16 child to engage in sexual intercourse or deviate sexual 17 intercourse sodomy if he or she knowingly entices, allures, 18 persuades, induces, or directs any person under the age of 12 19 years to engage in sexual intercourse or deviate sexual 20 intercourse sodomy with another person under the age of 12. 21 "(2) Directing a child to engage in sexual 22 intercourse or deviate sexual intercourse sodomy is a Class A 23 felony. 24 "(b)(1) A person commits the crime of directing a 25 child to engage in sexual contact if he or she knowingly Page 17 SB320 1 entices, allures, persuades, induces, or directs any person 2 under the age of 12 years to engage in sexual contact with 3 another person under the age of 12. 4 "(2) A violation of this section is a Class C B 5 felony. 6 "§13A-11-9. 7 "(a) A person commits the crime of loitering if he 8 or she does any of the following: 9 "(1) Loiters, remains or wanders about in a public 10 place for the purpose of begging; or. 11 "(2) Loiters or remains in a public place for the 12 purpose of gambling; or. 13 "(3) Loiters or remains in a public place for the 14 purpose of engaging or soliciting another person to engage in 15 prostitution or deviate sexual intercourse; or sodomy. 16 "(4) Being masked, loiters, remains, or congregates 17 in a public place; or. 18 "(5) Loiters or remains in or about a school, 19 college, or university building or grounds after having been 20 told to leave by any authorized official of such the school, 21 college, or university, and not having any reason or 22 relationship involving custody of or responsibility for a 23 pupil or any other specific, legitimate reason for being 24 there, and not having written permission from a school, 25 college or university administrator; or. Page 18 SB320 1 "(6) Loiters or remains in any transportation 2 facility, unless specifically authorized to do so, for the 3 purpose of soliciting or engaging in any business, trade, or 4 commercial transactions involving the sale of merchandise or 5 services; or. 6 "(7) Loiters or remains in any place with one or 7 more persons for the purpose of unlawfully using or possessing 8 a dangerous drug. 9 "(b) A person does not commit a crime under 10 subdivision (a)(4) of this section if he or she is going to or 11 from or staying at a masquerade party, or is participating in 12 a public parade or presentation of an educational, religious, 13 or historical character or in an event as defined in 14 subdivision (1) of Section 13A-11-140. 15 "(c) "Deviate sexual intercourse Sodomy" in 16 subdivision (a)(3) of this section is defined as in 17 subdivision (2) of Section 13A-6-60. 18 "(d) "Dangerous drug" in subdivision (a)(7) of this 19 section means any narcotic, drug, or controlled substance as 20 defined in Chapter 2 of Title 20 of this Code and any schedule 21 incorporated therein. 22 "(e) Loitering is a violation. 23 "§13A-11-32.1. 24 "(a) A person commits the crime of aggravated 25 criminal surveillance if he or she intentionally engages in Page 19 SB320 1 surveillance of an individual in any place where the 2 individual being observed has a reasonable expectation of 3 privacy, without the prior express or implied consent of the 4 individual being observed, for the purpose of sexual 5 gratification. 6 "(b) Aggravated criminal surveillance is a Class A 7 misdemeanor, except if a person has a prior conviction or 8 adjudication under this section the offense is a Class C 9 felony. 10 "(c) For purposes of determining prior conviction or 11 adjudication under this section, convictions in municipal 12 court shall be included The statute of limitations begins at 13 the time of discovery of the surveillance. 14 "§13A-12-120. 15 "For the purpose of this division, the term 16 "prostitution" shall mean the commission by a person of any 17 natural or unnatural sexual act, deviate sexual intercourse 18 sodomy, or sexual contact for monetary consideration or other 19 thing of value. 20 "§13A-12-121. 21 "(a) No person shall commit an act of prostitution 22 as defined in Section 13A-12-120. 23 "(b) No person shall solicit, compel, or coerce any 24 person to have sexual intercourse or participate in any 25 natural or unnatural sexual act, deviate sexual intercourse Page 20 SB320 1 sodomy, or sexual contact for monetary consideration or other 2 thing of marketable value. 3 "(c) No person shall agree to engage in sexual 4 intercourse, deviate sexual intercourse sodomy, or sexual 5 contact with another or participate in the act for monetary 6 consideration or other thing of marketable value and give or 7 accept monetary consideration or other thing of value in 8 furtherance of the agreement. 9 "(d) No person shall knowingly do any of the 10 following: 11 "(1) Cause or aid a person to commit or engage in 12 prostitution. 13 "(2) Procure or solicit patrons for prostitution. 14 "(3) Provide persons or premises for prostitution 15 purposes. 16 "(4) Receive or accept money or other thing of value 17 pursuant to a prior agreement with any person whereby he or 18 she participates or is to participate in the proceeds of any 19 prostitution activity. 20 "(5) Operate or assist in the operation of a house 21 of prostitution or a prostitution enterprise. 22 "§13A-12-190. 23 "For the purposes of this division, the following 24 terms shall have the meanings respectively ascribed to them by 25 this section: Page 21 SB320 1 "(1) DISSEMINATE. To transmit, distribute, sell, 2 lend, provide, transfer, or show for monetary consideration or 3 to offer or agree to do the same, including through electronic 4 means. 5 "(2) DISPLAY PUBLICLY. The exposing, placing, 6 posting, exhibiting, or in any fashion displaying in any 7 location, whether public or private, an item in such a manner 8 that it may be readily seen and its content or character 9 distinguished by normal unaided vision viewing it from a 10 public thoroughfare, depot or vehicle. 11 "(3) PUBLIC THOROUGHFARE, DEPOT, or VEHICLE. Any 12 street, highway, park, depot, or transportation platform or 13 other place, whether indoors or out, or any vehicle for public 14 transportation, owned or operated by government, either 15 directly or through a public corporation or authority, or 16 owned or operated by any agency of public transportation that 17 is designed for the use, enjoyment, or transportation of the 18 general public. 19 "(4) KNOWINGLY. A person knowingly disseminates or 20 publicly displays obscene matter when the person knows the 21 nature of the matter. A person knows the nature of the matter 22 when either of the following circumstances exist: 23 "a. The person is aware of the character and content 24 of the matter; or. Page 22 SB320 1 "b. The person recklessly disregards circumstances 2 suggesting the character and content of the matter. 3 "(5) SADO-MASOCHISTIC ABUSE. Such term means either 4 of the following: 5 "a. Flagellation or torture, for the purpose of 6 sexual stimulation, by or upon a person who is nude or clad in 7 undergarments or in a revealing or bizarre costume; or. 8 "b. The condition of a person who is nude or clad in 9 undergarments or in a revealing or bizarre costume being 10 fettered, bound, or otherwise physically restrained for the 11 purpose of sexual stimulation. 12 "(6) SEXUAL EXCITEMENT. The condition of human male 13 or female genitals when in a state of sexual stimulation. 14 "(7) SEXUAL INTERCOURSE. Intercourse, real or 15 simulated, whether genital-genital, oral-genital, anal-genital 16 or oral-anal, whether between persons of the same or opposite 17 sex or between a human and an animal. 18 "(8) MASTURBATION. Manipulation, by hand or 19 instrument, of the human genitals, whether one's own or 20 another's for the purpose of sexual stimulation. 21 "(9) OTHER SEXUAL CONDUCT. Any touching of the 22 genitals, pubic areas, or buttocks of the human male or 23 female, or the breasts of the female, whether alone or between 24 members of the same or opposite sex or between humans and Page 23 SB320 1 animals in an act of apparent sexual stimulation or 2 gratification. 3 "(10) BREAST NUDITY. The lewd showing of the 4 post-pubertal human female breasts below a point immediately 5 above the top of the areola. 6 "(11) GENITAL NUDITY. The lewd showing of the 7 genitals or pubic area. 8 "(12) MATTER. Any book, magazine, newspaper, or 9 other printed material, or any picture, photograph, motion 10 picture, video cassette, tape, record, digital video disc 11 (DVD), video compilation, or electronic depiction in a 12 comparable format, or an image, file, download, or other 13 content stored, or reproduced by using a computer or 14 electronic device or other digital storage, or any other 15 thing, articles, or materials that either are or contain a 16 photographic or other visual depiction of a live act, 17 performance, or event. 18 "(13) OBSCENE. a. When used to describe any matter 19 that contains a visual reproduction of breast nudity, such 20 term means matter that the term shall include all of the 21 following: 22 "1. Applying contemporary local community standards, 23 on the whole, appeals to the prurient interest; and. 24 "2. Is patently offensive; and. Page 24 SB320 1 "3. On the whole, lacks serious literary, artistic, 2 political, or scientific value. 3 "b. When used to describe matter that is a depiction 4 of an act of sado-masochistic abuse, sexual intercourse, 5 sexual excitement, masturbation, genital nudity, or other 6 sexual conduct, such the term means matter containing such a 7 visual reproduction that itself lacks serious literary, 8 artistic, political, or scientific value. 9 "(14) LOCAL COMMUNITY. The judicial circuit in which 10 the indictment is brought. 11 "(15) VISUAL DEPICTION. A portrayal, representation, 12 illustration, image, likeness, or other thing that creates a 13 sensory impression, whether an original, duplicate, or 14 reproduction. 15 "(16) SEPARATE OFFENSE. The depiction of an 16 individual less than 17 years of age that violates this 17 division shall constitute a separate offense for each single 18 visual depiction. 19 "§13A-12-192. 20 "(a) Any person who knowingly possesses with intent 21 to disseminate any obscene matter that contains a visual 22 depiction of a person under the age of 17 years engaged in any 23 act of sado-masochistic abuse, sexual intercourse, sexual 24 excitement, masturbation, breast nudity, genital nudity, or 25 other sexual conduct shall be guilty of a Class B felony. Page 25 SB320 1 Possession of three or more copies of the same visual 2 depiction contained in obscene matter is prima facie evidence 3 of possession with intent to disseminate the same Any transfer 4 of the visual depiction from any electronic device to any 5 other device, program, application, or any other place with 6 storage capability which can be made available or is 7 accessible by other users, is prima facie evidence of 8 possession with intent to disseminate. 9 "(b) Any person who knowingly possesses any obscene 10 matter that contains a visual depiction of a person under the 11 age of 17 years engaged in any act of sado-masochistic abuse, 12 sexual intercourse, sexual excitement, masturbation, breast 13 nudity, genital nudity, or other sexual conduct shall be 14 guilty of a Class C felony. 15 "§15-3-5. 16 "(a) There is no limitation of time within which a 17 prosecution must be commenced for any of the following 18 offenses: 19 "(1) Any capital offense;. 20 "(2) Any felony involving the use, attempted use, or 21 threat of, violence to a person;. 22 "(3) Any felony involving serious physical injury or 23 death of a person;. 24 "(4) Any sex offense pursuant to Section 15-20A-5 25 involving a victim under 16 years of age, regardless of Page 26 SB320 1 whether it involves force or, serious physical injury, or 2 death;. 3 "(5) Any felony involving arson of any type;. 4 "(6) Any felony involving forgery of any type;. 5 "(7) Any felony involving counterfeiting; and. 6 "(8) Any felony involving drug trafficking. 7 "(b) The amendments made by this act shall apply to 8 both of the following: 9 "(1) To all crimes committed after January 7, 1985; 10 and. 11 "(2) To all crimes committed before January 7, 1985, 12 for which no statute of limitations provided under 13 pre-existing law has run as of January 7, 1985. 14 "(c) Nothing herein shall be construed to mean that 15 the adoption of this act indicates that any former statute of 16 limitations applying to capital offenses is invalid as the 17 result of any decision of any court invalidating the capital 18 punishment statutes of the State of Alabama. 19 "§15-20A-5. 20 "For the purposes of this chapter, a sex offense 21 includes any of the following offenses: 22 "(1) Rape in the first degree, as provided by 23 Section 13A-6-61. 24 "(2) Rape in the second degree, as provided by 25 Section 13A-6-62. A juvenile sex offender adjudicated Page 27 SB320 1 delinquent of a violation of rape in the second degree is 2 presumed to be exempt from this chapter after the juvenile has 3 been counseled on the dangers of the conduct for which he or 4 she was adjudicated delinquent unless the sentencing court 5 makes a determination that the juvenile sex offender is to be 6 subject to this chapter. 7 "(3) Sodomy in the first degree, as provided by 8 Section 13A-6-63. 9 "(4) Sodomy in the second degree, as provided by 10 Section 13A-6-64. A juvenile sex offender adjudicated 11 delinquent of a violation of sodomy in the second degree is 12 presumed to be exempt from this chapter after the juvenile has 13 been counseled on the dangers of the conduct for which he or 14 she was adjudicated delinquent unless the sentencing court 15 makes a determination that the juvenile sex offender is to be 16 subject ot this chapter. 17 "(5) Sexual misconduct, as provided by Section 18 13A-6-65, provided that on a first conviction or adjudication 19 the sex offender is only subject to registration and 20 verification pursuant to this chapter. On a second or 21 subsequent conviction or adjudication of a sex offense, if the 22 second or subsequent conviction or adjudication does not arise 23 out of the same set of facts and circumstances as the first 24 conviction or adjudication of a sex offense, the sex offender 25 shall comply with all requirements of this chapter.The Page 28 SB320 1 sentencing court may exempt from this chapter a juvenile sex 2 offender adjudicated delinquent of sexual misconduct. A 3 juvenile sex offender adjudicated delinquent of a violation of 4 sexual misconduct is presumed to be exempt from this chapter 5 after the juvenile has been counseled on the dangers of the 6 conduct for which he or she was adjudicated delinquent unless 7 the sentencing court makes a determination that the juvenile 8 sex offender is to be subject to this chapter. 9 "(6) Sexual torture, as provided by Section 10 13A-6-65.1. 11 "(7) Sexual abuse in the first degree, as provided 12 by Section 13A-6-66. 13 "(8) Sexual abuse in the second degree, as provided 14 by Section 13A-6-67. 15 "(9) Indecent exposure, as provided by Section 16 13A-6-68, provided that on a first conviction or adjudication 17 of a sex offense, the sex offender is only subject to 18 registration and verification pursuant to this chapter. On a 19 second or subsequent conviction or adjudication of a sex 20 offense, if the second or subsequent conviction or 21 adjudication does not arise out of the same set of facts and 22 circumstances as the first conviction or adjudication, the sex 23 offender shall comply with all requirements of this 24 chapter.The sentencing court may exempt from this chapter a 25 juvenile sex offender adjudicated delinquent of indecent Page 29 SB320 1 exposure. A juvenile sex offender adjudicated of a violation 2 of indecent exposure is presumed to be exempt from this 3 chapter after the juvenile has been counseled on the dangers 4 of the conduct for which he or she was adjudicated delinquent 5 unless the sentencing court makes a determination that the 6 juvenile sex offender is to be subject to this chapter. 7 "(10) Enticing a child to enter a vehicle, room, 8 house, office, or other place for immoral purposes, as 9 provided by Section 13A-6-69. 10 "(11) Sexual abuse of a child less than 12 years 11 old, as provided by Section 13A-6-69.1. 12 "(12) Promoting prostitution in the first degree, as 13 provided by Section 13A-12-111. 14 "(13) Promoting prostitution in the second degree, 15 as provided by Section 13A-12-112. 16 "(14) Violation of the Alabama Child Pornography 17 Act, as provided by Section 13A-12-191, 13A-12-192, 18 13A-12-196, or 13A-12-197. The sentencing court may exempt 19 from this chapter a juvenile sex offender adjudicated 20 delinquent of a violation of the Alabama Child Pornography Act 21 after the juvenile has been counseled on the dangers of the 22 conduct for which he or she was adjudicated delinquent. A 23 juvenile sex offender adjudicated delinquent of a violation of 24 the Alabama Child Pornography Act is presumed to be exempt 25 from this chapter after the juvenile has been counseled on the Page 30 SB320 1 dangers of the conduct for which he or she was adjudicated 2 delinquent unless the sentencing court makes a determination 3 that the juvenile sex offender is to be subject to this 4 chapter. 5 "(15) Unlawful imprisonment in the first degree, as 6 provided by Section 13A-6-41, if the victim of the offense is 7 a minor, and the record of adjudication or conviction reflects 8 the intent of the unlawful imprisonment was to abuse the minor 9 sexually. 10 "(16) Unlawful imprisonment in the second degree, as 11 provided by Section 13A-6-42, if the victim of the offense is 12 a minor, and the record of adjudication or conviction reflects 13 the intent of the unlawful imprisonment was to abuse the minor 14 sexually. 15 "(17) Kidnapping in the first degree, as provided by 16 subdivision (4) of subsection (a) of Section 13A-6-43, if the 17 intent of the abduction is to violate or abuse the victim 18 sexually. 19 "(18) Kidnapping of a minor, except by a parent, 20 guardian, or custodian, as provided by Section 13A-6-43 or 21 13A-6-44. 22 "(19) Incest, as provided by Section 13A-13-3. 23 "(20) Transmitting obscene material to a child by 24 computer, as provided by Section 13A-6-111. Page 31 SB320 1 "(21) School employee engaging in a sex act or 2 deviant sexual intercourse with a student, or having sexual 3 contact or soliciting a sex act or sexual contact with a 4 student as provided by Sections 13A-6-81 and 13A-6-82. 5 "(22) Foster parent engaging in a sex act, having 6 sexual contact, or soliciting a sex act or sexual contact with 7 a foster child as provided by Section 13A-6-71. 8 "(23) Facilitating solicitation of unlawful sexual 9 conduct with a child, as provided by Section 13A-6-121. 10 "(24) Electronic solicitation of a child, as 11 provided by Section 13A-6-122. 12 "(25) Facilitating the on-line solicitation of a 13 child, as provided by Section 13A-6-123. 14 "(26) Traveling to meet a child for an unlawful sex 15 act, as provided by Section 13A-6-124. 16 "(27) Facilitating the travel of a child for an 17 unlawful sex act, as provided by Section 13A-6-125. 18 "(28) Human trafficking in the first degree, as 19 provided by Section 13A-6-152, provided that the offense 20 involves sexual servitude. 21 "(29) Human trafficking in the second degree, as 22 provided by Section 13A-6-153, provided that the offense 23 involves sexual servitude. 24 "(30) Custodial sexual misconduct, as provided by 25 Section 14-11-31. Page 32 SB320 1 "(31) Sexual extortion, as provided by Section 2 13A-6-241. 3 "(32) Directing a child to engage in a sex act, as 4 provided in Section 13A-6-243. 5 "(33) Any offense which is the same as or equivalent 6 to any offense set forth above as the same existed and was 7 defined under the laws of this state existing at the time of 8 such conviction, specifically including, but not limited to, 9 crime against nature, as provided by Section 13-1-110; rape, 10 as provided by Sections 13-1-130 and 13-1-131; carnal 11 knowledge of a woman or girl, as provided by Sections 13-1-132 12 through 13-1-135, or attempting to do so, as provided by 13 Section 13-1-136; indecent molestation of children, as defined 14 and provided by Section 13-1-113; indecent exposure, as 15 provided by Section 13-1-111; incest, as provided by Section 16 13-8-3; offenses relative to obscene prints and literature, as 17 provided by Sections 13-7-160 through 13-7-175, inclusive; 18 employing, harboring, procuring or using a girl over 10 and 19 under 18 years of age for the purpose of prostitution or 20 sexual intercourse, as provided by Section 13-7-1; seduction, 21 as defined and provided by Section 13-1-112; a male person 22 peeping into a room occupied by a female, as provided by 23 Section 13-6-6; assault with intent to ravish, as provided by 24 Section 13-1-46; and soliciting a child by computer, as 25 provided by Section 13A-6-110. Page 33 SB320 1 "(34) Any solicitation, attempt, or conspiracy to 2 commit any of the offenses listed in subdivisions (1) to (33), 3 inclusive. 4 "(35) Any crime committed in Alabama or any other 5 state, the District of Columbia, any United States territory, 6 or a federal, military, Indian, or foreign country 7 jurisdiction which, if it had been committed in this state 8 under the current provisions of law, would constitute an 9 offense listed in subdivisions (1) to (34), inclusive. 10 "(36) Any offense specified by Title I of the 11 federal Adam Walsh Child Protection and Safety Act of 2006 12 (Pub. L. 109-248, the Sex Offender Registration and 13 Notification Act (SORNA)). 14 "(37) Any crime committed in another state, the 15 District of Columbia, any United States territory, or a 16 federal, military, Indian, or foreign country jurisdiction if 17 that jurisdiction also requires that anyone convicted of that 18 crime register as a sex offender in that jurisdiction. 19 "(38) Any offender determined in any jurisdiction to 20 be a sex offender shall be considered a sex offender in this 21 state. 22 "(39) The foregoing notwithstanding, any crime 23 committed in any jurisdiction which, irrespective of the 24 specific description or statutory elements thereof, is in any 25 way characterized or known as rape, carnal knowledge, sodomy, Page 34 SB320 1 sexual assault, sexual battery, criminal sexual conduct, 2 criminal sexual contact, sexual abuse, continuous sexual 3 abuse, sexual torture, solicitation of a child, enticing or 4 luring a child, child pornography, lewd and lascivious 5 conduct, taking indecent liberties with a child, molestation 6 of a child, criminal sexual misconduct, video voyeurism, or 7 there has been a finding of sexual motivation. 8 "(40) Any crime not listed in this section wherein 9 the underlying felony is an element of the offense and listed 10 in subdivisions (1) to (39), inclusive. 11 "(41) Any other offense not provided for in this 12 section wherein there is a finding of sexual motivation as 13 provided by Section 15-20A-6. 14 "§15-20A-44. 15 "(a) The Secretary of the Alabama State Law 16 Enforcement Agency shall promulgate adopt rules establishing 17 an administrative hearing for persons who are only made 18 subject to this chapter pursuant to subdivision (37) (35) of 19 Section 15-20A-5. 20 "(b) The Secretary of the Alabama State Law 21 Enforcement Agency shall promulgate adopt rules setting forth 22 a listing of offenses from other jurisdictions that are to be 23 considered criminal sex offenses under subdivision (37) (35) 24 of Section 15-20A-5. Thereafter, any individual convicted of 25 any offense set forth in the listing shall immediately be Page 35 SB320 1 subject to this chapter and shall not be entitled to an 2 administrative hearing as provided in subsection (a). 3 "(c) The Secretary of the Alabama State Law 4 Enforcement Agency shall have the authority to promulgate any 5 rules as are necessary to implement and enforce this chapter. 6 "§15-23-101. 7 "When a person has been charged with the crime of 8 rape, sodomy, or, sexual misconduct, sexual torture, sexual 9 abuse, assault by bodily fluids, or any other crime in which 10 the victim was compelled to engage in sexual activity by force 11 or threat of force, and it appears from the nature of the 12 charge that the transmission of body fluids from one person to 13 another may have been involved, upon the request of the 14 alleged victim or the parent or guardian of an alleged a minor 15 victim, the district attorney shall file a motion with the 16 court for an order requiring the person charged to submit to a 17 test for any sexually transmitted disease. 18 "§15-23-102. 19 "(a)(1) If the district attorney files a motion 20 under Section 15-23-101, the court shall order the person 21 charged to submit to testing if the court determines there is 22 probable cause to believe that the person charged committed 23 the crime of rape, sodomy, or, sexual misconduct, sexual 24 torture, sexual abuse, assault by bodily fluids, or any other 25 crime where the victim was compelled to engage in sexual Page 36 SB320 1 activity by force or threat of force and the transmission of 2 body fluids was involved. 3 "(2) If a warrant, information, or indictment has 4 been issued and the defendant is in custody or has been served 5 with the warrant, information, or indictment, the test shall 6 be performed within 48 hours of service of the court order 7 requiring the defendant to submit to testing. 8 "(b) When a test is ordered under Section 15-23-101, 9 the alleged victim of the crime or a parent or guardian of the 10 alleged minor victim shall designate an attending physician 11 who has agreed in advance to accept the victim as a patient to 12 receive information on behalf of the alleged victim. 13 "(c) If any sexually transmitted disease test 14 results in a negative reaction, the court shall order the 15 person to submit to any follow-up tests at the intervals and 16 in the manner as shall be determined by the State Board of 17 Health. 18 "(d) The result of any test ordered under this 19 section is not a public record and shall be available only to 20 the following: 21 "(1) The alleged victim. 22 "(2) The parent or guardian of the alleged minor 23 victim. 24 "(3) The attending physician of the alleged victim. 25 "(4) The person tested. Page 37 SB320 1 "(e) If any sexually transmitted disease test 2 ordered under this section results in a positive reaction, the 3 individual subject to the test shall receive post-test 4 counseling. Counseling and referral for appropriate health 5 care, testing, and support services as directed by the State 6 Health Officer shall be provided to the alleged victim at the 7 request of the alleged victim or the parent or guardian of the 8 alleged minor victim." 9 Section 2. Although this bill would have as its 10 purpose or effect the requirement of a new or increased 11 expenditure of local funds, the bill is excluded from further 12 requirements and application under Amendment 621, now 13 appearing as Section 111.05 of the Official Recompilation of 14 the Constitution of Alabama of 1901, as amended, because the 15 bill defines a new crime or amends the definition of an 16 existing crime. 17 Section 3. This act shall become effective on the 18 first day of the third month following its passage and 19 approval by the Governor, or its otherwise becoming law. Page 38 SB320 1 2 3 4 President and Presiding Officer of the Senate 5 6 Speaker of the House of Representatives SB320 7 8 Senate 16-MAY-19 9 I hereby certify that the within Act originated in and passed 10 the Senate, as amended. 11 12 Patrick Harris, 13 Secretary. 14 15 16 17 House of Representatives 18 Amended and passed 23-MAY-19 19 20 21 Senate concurred in House amendment 28-MAY-19 22 23 24 By: Senator Figures Page 39