Text of AR HB 1951 (2021)

Stricken language would be deleted from and underlined language would be added to present law. *BPG536* 4/20/2021 8:49:55 AM BPG536 State of Arkansas 1 93rd General Assembly A Bill 2 Regular Session, 2021 HOUSE BILL 1951 3 4 By: Representative Crawford 5 6 For An Act To Be Entitled 7 AN ACT TO AMEND THE CRIMINAL OFFENSE OF SEXUAL 8 INDECENCY WITH A CHILD; AND FOR OTHER PURPOSES. 9 10 11 Subtitle 12 TO AMEND THE CRIMINAL OFFENSE OF SEXUAL 13 INDECENCY WITH A CHILD. 14 15 16 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 17 18 SECTION 1. Arkansas Code § 5-1-109(a)(1)(E), concerning the statute of 19 limitations for the offense of sexual indecency with a child, is amended to 20 read as follows: 21 (E) Sexual indecency with a child, § 5-14-110, if a felony 22 offense; 23 24 SECTION 2. Arkansas Code § 5-4-703(a)(8), concerning an additional 25 fine for an offense committed against a child or in the presence of a child, 26 is amended to read as follows: 27 (8) Sexual indecency with a child, § 5-14-110, if the offense is 28 a felony or Class A misdemeanor, indecent exposure, § 5-14-112, sexual 29 assault in the third degree, § 5-14-126, or sexual assault in the fourth 30 degree, § 5-14-127; 31 32 SECTION 3. Arkansas Code § 5-13-210(f), concerning the offense of 33 introduction of a controlled substance into the body of another person, is 34 amended to read as follows: 35 (f) Notwithstanding a provision of subsection (c) of this section, any 36 HB1951 2 4/20/2021 8:49:55 AM BPG536 person is guilty of a Class Y felony who violates this section by introducing 1 a controlled substance into the body of another person without that other 2 person's knowledge or consent with the purpose of: 3 (1) Committing any felony sexual offense, as defined in Arkansas 4 law; 5 (2) Engaging in any unlawful sexual act, as defined in § 5-14- 6 101 et seq., except for a misdemeanor violation of sexual indecency with a 7 child, § 5-14-110; 8 (3) Engaging in any unlawful sexual contact, as defined in § 5- 9 14-101; or 10 (4) Engaging in any act involving a child engaging in sexually 11 explicit conduct, as defined in § 5-27-302. 12 13 SECTION 4. Arkansas Code § 5-14-110 is amended to read as follows: 14 5-14-110. Sexual indecency with a child — Definitions. 15 (a) A person commits sexual indecency with a child if: 16 (1) Being eighteen (18) years of age or older, the person 17 solicits another person who is less than fifteen (15) years of age or who is 18 represented to be less than fifteen (15) years of age to engage in: 19 (A) Sexual intercourse; 20 (B) Deviate sexual activity; or 21 (C) Sexual contact; 22 (2)(A) With the purpose to arouse or gratify a sexual desire of 23 himself or herself or a sexual desire of another person, the person purposely 24 exposes his or her sex organs to another person who is less than fifteen (15) 25 years of age. 26 (B) It is an affirmative defense to a prosecution under 27 subdivision (a)(2)(A) of this section if the person is within three (3) years 28 of age of the victim; 29 (3) With the purpose to arouse or gratify a sexual desire of 30 himself or herself or a sexual desire of another person, the person purposely 31 exposes his or her sex organs to a minor, and the actor is: 32 (A) Employed with the Division of Correction, Division of 33 Community Correction, any city or county jail, or any juvenile detention 34 facility, and the minor is in custody at a facility operated by the agency or 35 contractor employing the actor; 36 HB1951 3 4/20/2021 8:49:55 AM BPG536 (B) A mandated reporter under § 12-18-402(b) and is in a 1 position of trust or authority over the minor; or 2 (C) The minor's parent or guardian, an employee in the 3 minor's school or school district, a temporary caretaker, or a person in a 4 position of trust and authority over the minor; 5 (4) With the purpose to arouse or gratify his or her sexual 6 desire or a sexual desire of another person, the person, being eighteen (18) 7 years of age or older, causes or coerces a minor to expose his or her sex 8 organs to the actor or another person, and the actor is: 9 (A) Employed with the Division of Correction, the Division 10 of Community Correction, any city or county jail, or any juvenile detention 11 facility, and the minor is in custody at a facility operated by the agency or 12 contractor employing the actor; 13 (B) Employed by or contracted with the Division of 14 Community Correction, a local law enforcement agency, a court, or a local 15 government and the actor is supervising the minor while the minor is on 16 probation or parole or for any other court-ordered reason; 17 (C) A mandated reporter under § 12-18-402(b) and is in a 18 position of trust or authority over the minor; or 19 (D) The minor's parent or guardian, an employee in the 20 minor's school or school district, a temporary caretaker, or a person in a 21 position of trust or authority over the minor; or 22 (5) Being eighteen (18) years of age or older, the person causes 23 or coerces another person who is less than fourteen (14) years of age to 24 expose his or her sex organs or the breast of a female with the purpose to 25 arouse or gratify a sexual desire of the actor or another person.; or 26 (6) Being eighteen (18) years of age or older, the person 27 knowingly exposes his or her sex organs to a minor of the opposite gender in 28 a public changing facility; or 29 (7)(A) Being eighteen (18) years of age or older, the person 30 enters into or remains in a public changing facility that is assigned to 31 persons of the opposite gender while knowing a minor of the opposite gender 32 is present in the public changing facility. 33 (B) Subdivision (7)(A) of this section does not apply to a 34 person entering into or remaining in a public changing facility: 35 (i) With a minor under seven (7) years of age and 36 HB1951 4 4/20/2021 8:49:55 AM BPG536 the person is the minor's parent, guardian, family member, or is otherwise 1 authorized to care for the minor; 2 (ii) For maintenance or inspection purposes if the 3 person is authorized to conduct maintenance or inspection of the public 4 changing facility; 5 (iii) To render medical assistance; 6 (iv) To accompany a person needing assistance when 7 the actor is the parent, guardian, family member, or is otherwise authorized 8 to care for the person needing assistance; 9 (v) To receive assistance in using the public 10 changing facility; 11 (vi) If the public changing facility has been 12 temporarily designated for use by persons of the same gender as the person; 13 or 14 (vii) Who is a certified law enforcement or 15 corrections officer accompanying a person of the opposite gender in his or 16 her custody. 17 (b) Sexual indecency with a child is a: 18 (1) Class D felony under subdivisions (a)(1)-(5) of this 19 section; 20 (2) Class A misdemeanor under subdivision (a)(6) of this 21 section; and 22 (3) Class C misdemeanor under subdivision (a)(7) of this 23 section. 24 (c) As used in this section: 25 (1) "Gender" means the physical condition of a person as being 26 male or female that was stated on the person's birth certificate at the time 27 the person was born; and 28 (2)(A) "Public changing facility" means a public or private 29 facility that is held out as open to the public and designed to be used at a 30 time during which a person may be in a state of undress in the presence of 31 other persons. 32 (B) "Public changing facility" includes without limitation 33 a restroom, bathroom, locker room, or shower room. 34 (C) "Public changing facility" does not include a private 35 dressing area open to the public that is designed for changing into and out 36 HB1951 5 4/20/2021 8:49:55 AM BPG536 of clothing that is for sale in a commercial establishment that engages in 1 the sale of clothing. 2 3 SECTION 5. Arkansas Code § 5-14-201 is amended to read as follows: 4 5-14-201. Definitions. 5 As used in this subchapter: 6 (1) “Relevant medical record” means a medical record of a person 7 charged with having committed a sex crime that contains information that may 8 reveal a health risk to the victim; and 9 (2) “Sex crime” means any offense described in § 5-14-101 et 10 seq., except for a misdemeanor violation of sexual indecency with a child, § 11 5-14-110, or § 5-70-101 et seq. 12 13 SECTION 6. Arkansas Code § 6-17-116 is amended to read as follows: 14 6-17-116. The Arkansas School Children Protection Act — Definitions. 15 (a) This section shall be known and may be cited as “The Arkansas 16 School Children Protection Act”. 17 (b) For purposes of this section: 18 (1) “Conviction” means having pleaded guilty or nolo contendere 19 to or having been found guilty of committing a sexual offense against a minor 20 or student; and 21 (2) A “sexual offense” is one described in § 5-14-101 et seq., 22 except for a misdemeanor violation of sexual indecency with a child, § 5-14- 23 110. 24 (c)(1) Any public school district employee who commits a sexual 25 offense against a minor shall upon conviction be dismissed from employment 26 and shall not thereafter be eligible for employment by any school in this 27 state. 28 (2) Any public school teacher who commits a sexual offense under 29 § 5-14-125(a)(6) shall upon conviction be dismissed from employment and shall 30 not thereafter be eligible for employment by any school in this state. 31 32 SECTION 7. Arkansas Code § 6-17-410(c)(14), concerning a disqualifying 33 offense for licensure to be a teacher, is amended to read as follows: 34 (14) Sexual indecency with a child as prohibited in § 5-14-110, 35 if a felony offense; 36 HB1951 6 4/20/2021 8:49:55 AM BPG536 1 SECTION 8. Arkansas Code § 6-17-414(b)(15), concerning a disqualifying 2 offense for employment of nonlicense personnel of an educational entity, is 3 amended to read as follows: 4 (15) Sexual indecency with a child as prohibited in § 5-14-110, 5 if a felony offense; 6 7 SECTION 9. Arkansas Code § 9-28-409(e)(3)(Z)(Z), concerning criminal 8 record and maltreatment checks under the Child Welfare Agency Licensing Act, 9 is amended to read as follows: 10 (Z)(Z) Sexual offenses, § 5-14-101 et seq., except for a 11 misdemeanor violation of sexual indecency with a child, § 5-14-110; 12 13 SECTION 10. Arkansas Code § 12-12-104(f)(2)(B), concerning the 14 definition of "sex offense" as used in the retention and disposition of 15 physical evidence in sex offense prosecutions, is amended to read as follows: 16 (B) Sexual indecency with a child, § 5-14-110, if a felony 17 offense; 18 19 SECTION 11. Arkansas Code § 12-12-401(8), as amended by Acts 2021, No. 20 472, concerning the definition of "victim", is amended to read as follows: 21 (8) “Victim” means any person who has been a victim of any 22 alleged sexual assault or incest as defined by § 5-14-101 et seq., except for 23 a misdemeanor violation of sexual indecency with a child, § 5-14-110, and § 24 5-26-202. 25 26 SECTION 12. Arkansas Code § 12-12-903(12)(A)(i)(b), concerning the 27 definition of "sex offense" under the Sex Offender Registration Act of 1997, 28 is amended to read as follows: 29 (b) Sexual indecency with a child, § 5-14-110, if a 30 felony offense; 31 32 SECTION 13. Arkansas Code § 12-12-1103(9), concerning the definition 33 of "qualifying offense" under the State Convicted Offender DNA Data Base Act, 34 is amended to read as follows: 35 (9)(A) “Qualifying offense” means any felony offense as defined 36 HB1951 7 4/20/2021 8:49:55 AM BPG536 in the Arkansas Criminal Code or a sexual offense classified as a misdemeanor 1 as defined by the Arkansas Criminal Code or a repeat offense as defined in 2 this section; and. 3 (B) "Qualifying offense" does not include a misdemeanor 4 violation of sexual indecency with a child, § 5-14-110; and 5 6 SECTION 14. Arkansas Code § 16-42-101(b), concerning the admissibility 7 of evidence of a victim's prior sexual past, is amended to read as follows: 8 (b) In any criminal prosecution under § 5-14-101 et seq., the Human 9 Trafficking Act of 2013, § 5-18-101 et seq., except for a misdemeanor 10 violation of sexual indecency with a child, § 5-14-110, or § 5-26-202, or for 11 criminal attempt to commit, criminal solicitation to commit, or criminal 12 conspiracy to commit an offense defined in any of those sections, opinion 13 evidence, reputation evidence, or evidence of specific instances of the 14 victim's prior sexual conduct with the defendant or any other person, 15 evidence of a victim's prior allegations of sexual conduct with the defendant 16 or any other person, evidence of a person's prior sexual conduct when the 17 person was a victim of human trafficking, which allegations the victim 18 asserts to be true, or evidence offered by the defendant concerning prior 19 allegations of sexual conduct by the victim with the defendant or any other 20 person if the victim denies making the allegations is not admissible by the 21 defendant, either through direct examination of any defense witness or 22 through cross-examination of the victim or other prosecution witness, to 23 attack the credibility of the victim, to prove consent or any other defense, 24 or for any other purpose. 25 26 SECTION 15. Arkansas Code § 16-82-101(b)(1), concerning the testing 27 for human immunodeficiency virus for a conviction of a sexual offense, is 28 amended to read as follows: 29 (b)(1) Any person arrested and charged with violating §§ 5-14-103, and 30 5-14-110, if a felony offense, and §§ 5-14-124 — 5-14-127, 5-26-202, and 5- 31 70-102 may be required by the court having jurisdiction of the criminal 32 prosecution, upon a finding of reasonable cause to believe that the person 33 committed the offense and subject to constitutional limitations, to be tested 34 for the presence of human immunodeficiency virus (HIV) or any antibody to 35 human immunodeficiency virus (HIV) unless the court determines that testing 36 HB1951 8 4/20/2021 8:49:55 AM BPG536 the defendant would be inappropriate and documents the reasons for that 1 determination in the court record. 2 3 SECTION 16. Arkansas Code § 16-90-1101(6)(B), concerning the 4 definition of "sex offense" in conjunction with the rights of crime victims, 5 is amended to read as follows: 6 (B) Sexual indecency with a child, § 5-14-110, if a felony 7 offense; 8 9 SECTION 17. Arkansas Code § 16-93-305, as amended by Acts 2021, No. 10 499, is amended to read as follows: 11 16-93-305. Probation — Sex offender may not reside with minor victim. 12 (a) If a person enters a plea of guilty or nolo contendere to or is 13 found guilty of a sexual offense under § 5-14-101 et seq., except for a 14 misdemeanor violation of sexual indecency with a child, § 5-14-110, or 15 incest, § 5-26-202, perpetrated against a minor and is otherwise eligible for 16 probation, the person is prohibited as a condition of his or her probation 17 from residing in a residence with any minor unless the court makes a specific 18 finding that the person poses no danger to a minor residing in the residence. 19 (b) Upon violation of this condition of probation, the court may enter 20 an adjudication of guilt and proceed as otherwise provided by law. 21 22 SECTION 18. Arkansas Code § 16-93-314(b)(2)(A), concerning the 23 discharge of probation, is amended to read as follows: 24 (A) The person applying for discharge has been convicted 25 of a sexual offense as defined by § 5-14-101 et seq., except for a 26 misdemeanor violation of sexual indecency with a child, § 5-14-110; and 27 28 SECTION 19. Arkansas Code § 17-3-102(a)(16), concerning licensing 29 restrictions based on criminal records, is amended to read as follows: 30 (16) Sexual indecency with a child as prohibited in § 5-14-110, 31 if a felony offense. 32 33 SECTION 20. Arkansas Code § 17-14-203(12)(C)(i)(i), effective January 34 1, 2017, and concerning background checks for appraisers, is amended to read 35 as follows: 36 HB1951 9 4/20/2021 8:49:55 AM BPG536 (i) A sexually related crime or act under § 5- 1 14-101 et seq., except for a misdemeanor violation of sexual indecency with a 2 child, § 5-14-110; 3 4 SECTION 21. Arkansas Code § 17-17-312(f)(16), concerning a 5 disqualifying offense for licensure for auctioneers, is amended to read as 6 follows: 7 (16) Sexual indecency with a child, as prohibited in § 5- 8 14-110, if a felony offense; 9 10 SECTION 22. Arkansas Code § 18-16-112(a)(4)(A)(ii), concerning the 11 definition of "sex crime" concerning landlord and tenant law and protections 12 for victims of domestic abuse, is amended to read as follows: 13 (ii) Sexual indecency with a child, § 5-14-110, if a 14 felony offense; 15 16 SECTION 23. Arkansas Code § 20-13-1106(a)(1)(O), concerning a 17 disqualifying offense for the Division of EMS and Trauma Systems of the 18 Department of Health, is amended to read as follows: 19 (O) Sexual indecency with a child as prohibited in § 5-14- 20 110, if a felony offense; 21 22 SECTION 24. Arkansas Code § 20-38-105(b)(16), concerning 23 disqualification from employment in certain health related professions, is 24 amended to read as follows: 25 (16) Any sexual offense, § 5-14-101 et seq., except for a 26 misdemeanor violation of sexual indecency with a child, § 5-14-110; 27 28 SECTION 25. Arkansas Code § 21-15-102(f)(15), concerning a 29 disqualifying offense for employment with a state agency in a position 30 involving direct contact with children and with individuals with mental 31 illnesses or developmental disabilities, is amended to read as follows: 32 (15) Sexual indecency with a child, as prohibited in § 5-14-110, 33 if a felony offense; 34 35 SECTION 26. Arkansas Code § 21-15-103(g)(15), concerning a 36 HB1951 10 4/20/2021 8:49:55 AM BPG536 disqualifying offense for employment as a public officer or employee, is 1 amended to read as follows: 2 (15) Sexual indecency with a child, as prohibited in § 5-14-110, 3 if a felony offense; 4 5 SECTION 27. Arkansas Code § 21-15-104(c)(8), concerning the waiver of 6 exclusion or discharge requirement for persons in designated positions, is 7 amended to read as follows: 8 (8) Sexual indecency with a child, § 5-14-110, if a felony 9 offense; 10 11 SECTION 28. Arkansas Code § 25-1-112 is amended to read as follows: 12 25-1-112. Sexual offenses screened in criminal background checks. 13 Whenever a criminal background check is performed on a person under the 14 provisions of any criminal background check requirement contained in this 15 Code for employment, licensure, or any other purpose, the person may be 16 disqualified for employment, licensure, or any other purpose for which the 17 background check was conducted if it is determined that the person committed 18 a violation of any sexual offense formerly proscribed under §§ 5-14-101 — 5- 19 14-103, §§ 5-14-104 — 5-14-109 [repealed], § 5-14-110, if a felony offense, 20 5-14-111 — and 5-14-112, 5-14-113 — 5-14-119 [reserved], §§ 5-14-120 — 5-14- 21 121 [repealed], and § 5-14-122 — 5-14-127, that is substantially equivalent 22 to any sexual offense presently listed in §§ 5-14-101 — 5-14-103, §§ 5-14-104 23 — 5-14-109 [repealed], § 5-14-110, if a felony offense, §§ 5-14-111 — and 5- 24 14-112, 5-14-113 — 5-14-119 [reserved], § 5-14-120 — 5-14-121 [repealed], and 25 5-14-122 — 5-14-127, and is an offense screened for in a criminal background 26 check. 27 28 29 30 31 32 33 34 35 36