Text of KY HB 278 (2024)

UNOFFICIAL COPY 24 RS BR 868 Page 1 of 23 XXXX 1/10/2024 3:56 PM Jacketed AN ACT relating to the protection of children. 1 Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2 Section 1. KRS 15A.190 is amended to read as follows: 3 The Justice and Public Safety Cabinet, in consultation with the Cabinet for Health and 4 Family Services, the Kentucky Commission on Women, and any other agency concerned 5 with particular acts of criminal activity, shall: 6 (1) Design, print, and distribute to all law enforcement agencies in the Commonwealth, 7 an electronic or paper uniform reporting form, to be known as the JC-3, which 8 provides statistical information relating to the crimes involving: 9 (a) Domestic violence;[,] 10 (b) Child abuse;[,] 11 (c) Childhood sexual assault or abuse as defined in Section 3 of this Act; 12 (d) Victimization of the elderly, including but not limited to elder abuse, neglect, 13 and exploitation and other crimes against the elderly;[,] or 14 (e) Any other particular area of criminal activity deemed by the secretary of 15 justice and public safety to require research as to its frequency; and 16 (2) Promulgate administrative regulations, in accordance with KRS Chapter 13A, to 17 provide that the information required in KRS 209A.122 be provided to the Criminal 18 Justice Statistical Analysis Center. 19 Section 2. KRS 17.500 is amended to read as follows: 20 As used in KRS 17.500 to 17.580: 21 (1) "Approved provider" means a mental health professional licensed or certified in 22 Kentucky whose scope of practice includes providing mental health treatment 23 services and who is approved by the Sex Offender Risk Assessment Advisory 24 Board, under administrative regulations promulgated by the board, to provide 25 comprehensive sex offender presentence evaluations or treatment to adults and 26 youthful offenders, as defined in KRS 600.020; 27 UNOFFICIAL COPY 24 RS BR 868 Page 2 of 23 XXXX 1/10/2024 3:56 PM Jacketed (2) "Cabinet" means the Justice and Public Safety Cabinet; 1 (3) (a) Except as provided in paragraph (b) of this subsection, "criminal offense 2 against a victim who is a minor" means any of the following offenses if the 3 victim is under the age of eighteen (18) at the time of the commission of the 4 offense: 5 1. Kidnapping, as set forth in KRS 509.040, except by a parent; 6 2. Unlawful imprisonment, as set forth in KRS 509.020, except by a 7 parent; 8 3. Sex crime; 9 4. Promoting a sexual performance of a minor, as set forth in KRS 10 531.320; 11 5. Human trafficking involving commercial sexual activity, as set forth in 12 KRS 529.100; 13 6. Promoting human trafficking involving commercial sexual activity, as 14 set forth in KRS 529.110; 15 7. Promoting prostitution, as set forth in KRS 529.040, when the defendant 16 advances or profits from the prostitution of a person under the age of 17 eighteen (18); 18 8. Use of a minor in a sexual performance, as set forth in KRS 531.310; 19 9. Sexual abuse, as set forth in KRS 510.120 and 510.130; 20 10. Unlawful transaction with a minor in the first degree, as set forth in KRS 21 530.064(1)(a); 22 11. Any offense involving a minor or depictions of a minor, as set forth in 23 KRS Chapter 531; 24 12. Any attempt to commit any of the offenses described in subparagraphs 25 1. to 11. of this paragraph; 26 13. Solicitation to commit any of the offenses described in subparagraphs 1. 27 UNOFFICIAL COPY 24 RS BR 868 Page 3 of 23 XXXX 1/10/2024 3:56 PM Jacketed to 11. of this paragraph; or 1 14. Any offense from another state or territory, any federal offense, or any 2 offense subject to a court martial of the United States Armed Forces, 3 which is similar to any of the offenses described in subparagraphs 1. to 4 13. of this paragraph. 5 (b) Conduct which is criminal only because of the age of the victim shall not be 6 considered a criminal offense against a victim who is a minor if the 7 perpetrator was under the age of eighteen (18) at the time of the commission 8 of the offense; 9 (4) "Law enforcement agency" means any lawfully organized investigative agency, 10 sheriff's office, police unit, or police force of federal, state, county, urban-county 11 government, charter county, city, consolidated local government, or a combination 12 of these, responsible for the detection of crime and the enforcement of the general 13 criminal federal or state laws; 14 (5) "Registrant" means: 15 (a) Any person eighteen (18) years of age or older at the time of the offense or 16 any youthful offender, as defined in KRS 600.020, who has committed: 17 1. A sex crime; or 18 2. A criminal offense against a victim who is a minor; or 19 (b) Any person required to register under KRS 17.510; or 20 (c) Any sexually violent predator; or 21 (d) Any person whose sexual offense has been diverted pursuant to KRS 533.250, 22 until the diversionary period is successfully completed; 23 (6) "Registrant information" means the name, including any lawful name change 24 together with the previous name, Social Security number, age, race, sex, date of 25 birth, height, weight, hair and eye color, fingerprints, palm prints, DNA sample, a 26 photograph, aliases used, residence, motor vehicle operator's license number as well 27 UNOFFICIAL COPY 24 RS BR 868 Page 4 of 23 XXXX 1/10/2024 3:56 PM Jacketed as any other government-issued identification card numbers, if any, a brief 1 description of the crime or crimes committed, and other information the cabinet 2 determines, by administrative regulation, may be useful in the identification of 3 registrants; 4 (7) "Residence" means any place where a person sleeps. For the purposes of this 5 statute, a registrant may have more than one (1) residence. A registrant is required 6 to register each residence address; 7 (8) "Sex crime" means: 8 (a) A felony offense defined in KRS Chapter 510, KRS 529.100 or 529.110 9 involving commercial sexual activity, 530.020, 530.064(1)(a), 531.310, 10 531.320, [or ]531.335, or Section 16 of this Act; 11 (b) A felony attempt to commit a felony offense specified in paragraph (a) of this 12 subsection; or 13 (c) A federal felony offense, a felony offense subject to a court-martial of the 14 United States Armed Forces, or a felony offense from another state or a 15 territory where the felony offense is similar to a felony offense specified in 16 paragraph (a) of this subsection; 17 (9) "Sexual offender" means any person convicted of, pleading guilty to, or entering an 18 Alford plea to a sex crime as defined in this section, as of the date the verdict is 19 entered by the court; 20 (10) "Sexually violent predator" means any person who has been subjected to 21 involuntary civil commitment as a sexually violent predator, or a similar 22 designation, under a state, territory, or federal statutory scheme; 23 (11) "The board" means the Sex Offender Risk Assessment Advisory Board created 24 under KRS 17.554; 25 (12) "Victim" has the same meaning as in KRS 421.500; 26 (13) "DNA sample" or "deoxyribonucleic acid sample" means a blood or swab specimen 27 UNOFFICIAL COPY 24 RS BR 868 Page 5 of 23 XXXX 1/10/2024 3:56 PM Jacketed from a person, as prescribed by administrative regulation, that is required to provide 1 a DNA sample pursuant to KRS 17.170 or 17.510, that shall be submitted to the 2 Department of Kentucky State Police forensic laboratory for law enforcement 3 identification purposes and inclusion in law enforcement identification databases; 4 and 5 (14) "Authorized personnel" means an agent of state government who is properly trained 6 in DNA sample collection pursuant to administrative regulation. 7 Section 3. KRS 413.249 is amended to read as follows: 8 (1) As used in this section: 9 (a) "Childhood sexual assault or abuse" means an act or series of acts against a 10 person less than eighteen (18) years old and which meets the criteria defining 11 a misdemeanor or felony in: 12 1. KRS Chapter 510; 13 2. KRS 529.040 when the defendant advances or profits from the 14 prostitution of a minor; 15 3. KRS 529.100 when the offense involves commercial sexual activity; 16 4. KRS 529.110 when the offense involves commercial sexual activity; 17 5. KRS 530.020 or 530.064(1)(a); 18 6. KRS Chapter 531 involving a minor or depiction of a minor; or 19 7. KRS 506.010 or 506.030 for attempt to commit or solicitation to commit 20 any of the offenses described in subparagraphs 1. to 6. of this paragraph. 21 No prior criminal prosecution or conviction of the civil defendant for the act 22 or series of acts shall be required to bring a civil action for redress of 23 childhood sexual assault or abuse; 24 (b) "Entity" means a firm, partnership, company, corporation, trustee, association, 25 or any private or public entity, including the Commonwealth, a city, county, 26 urban-county, consolidated local government, unified local government, or 27 UNOFFICIAL COPY 24 RS BR 868 Page 6 of 23 XXXX 1/10/2024 3:56 PM Jacketed charter county government, or any of their agencies, departments, or any KRS 1 58.180 nonprofit nonstock corporation; and 2 (c) "Injury or illness" means either a physical or psychological injury or illness. 3 (2) A civil action for recovery of damages for injury or illness suffered as a result of 4 childhood sexual assault or abuse is not subject to a period of limitation and may 5 be commenced at any time[shall be brought before whichever of the following 6 periods last expires: 7 (a) Within ten (10) years of the commission of the act or the last of a series of 8 acts by the same perpetrator; 9 (b) Within ten (10) years of the date the victim knew, or should have known, of 10 the act; 11 (c) Within ten (10) years after the victim attains the age of eighteen (18) years; or 12 (d) Within ten (10) years of the conviction of a civil defendant for an offense 13 included in the definition of childhood sexual assault or abuse. 14 (3) The time periods set forth in subsection (2) of This section shall apply to a civil 15 action for recovery of damages for injury or illness] against:[;] 16 (a) A person alleged to have committed the act of childhood sexual assault or 17 abuse; or 18 (b) An entity that owed a duty of care to the plaintiff, where a wrongful or 19 negligent act by an employee, officer, director, official, volunteer, 20 representative, or agent of the entity was a legal cause of the childhood sexual 21 assault or abuse that resulted in the injury to the plaintiff. 22 (3)[(4)] [If a complaint is filed alleging that an act of childhood sexual assault or 23 abuse occurred more than ten (10) years prior to the date that the action is 24 commenced, ]The complaint shall be accompanied by a motion to seal the record 25 and the complaint shall immediately be sealed by the clerk of the court. The 26 complaint shall remain sealed until: 27 UNOFFICIAL COPY 24 RS BR 868 Page 7 of 23 XXXX 1/10/2024 3:56 PM Jacketed (a) The court rules upon the motion to seal; 1 (b) Any motion to dismiss under CR 12.02 is ruled upon, and if the complaint is 2 dismissed, the complaint and any related papers or pleadings shall remain 3 sealed unless opened by a higher court; or 4 (c) The defendant files an answer and a motion to seal the record upon grounds 5 that a valid factual defense exists, to be raised in a motion for summary 6 judgment pursuant to CR 56. The record shall remain sealed by the clerk until 7 the court rules upon the defendant's motion to close the record. If the court 8 grants the motion to close, the record shall remain sealed until the defendant's 9 motion for summary judgment is granted. The complaint, motions, and other 10 related papers or pleadings shall remain sealed unless opened by a higher 11 court. 12 (4)[(5)] A victim of childhood sexual assault or abuse shall not have a cause of action 13 against a third party, unless the third party failed to act as a reasonable person or 14 entity in complying with their duties to the victim.[ If a victim of childhood sexual 15 assault or abuse has a cause of action under this section, the cause of action shall be 16 commenced within the time period set forth in subsection (2) of this section.] 17 (5)[(6)] (a) Neither the husband-wife nor any professional-client/patient privilege, 18 except the attorney-client and clergy-penitent privilege, shall be a ground for 19 excluding evidence regarding childhood sexual assault or abuse or the cause 20 thereof when an exception to the Kentucky Rules of Evidence is met, in any 21 judicial proceeding. This subsection shall also apply in any criminal 22 proceeding in District or Circuit Court regarding childhood sexual assault or 23 abuse. 24 (b) As used in paragraph (a) of this subsection, the clergy-penitent privilege is 25 limited to information received solely through confidential communications 26 with a clergy member, privately or in a confessional setting, when in the 27 UNOFFICIAL COPY 24 RS BR 868 Page 8 of 23 XXXX 1/10/2024 3:56 PM Jacketed course of the discipline or practice of the clergy member's church, 1 denomination, or organization, he or she is authorized or accustomed to 2 hearing those communications, and under the discipline, tenets, customs, or 3 practices of his or her church, denomination, or organization, has a duty to 4 keep those communications secret. 5 (6)[(7)] (a) As was its intention with the passage of 2017 Ky. Acts ch. 114, sec. 2, 6 the General Assembly hereby states that the amendments enacted in 2017 Ky. 7 Acts ch. 114, sec. 2 shall be applied retroactively to actions accruing before its 8 effective date of June 29, 2017. This section is a remedial statute which is to 9 be given the most liberal interpretation to provide remedies for victims of 10 childhood sexual assault or abuse. 11 (b) Notwithstanding any provision of law to the contrary, any claim for childhood 12 sexual assault or abuse that was barred as of March 23, 2021, because the 13 applicable statute of limitations had expired is hereby revived, and the action 14 may be brought if commenced within five (5) years of the date on which the 15 applicable statute of limitations expired. 16 (7) The provisions of subsection (2) of this section shall apply to any victim whose 17 statute of limitation has not run prior to the effective date of this Act. 18 Section 4. KRS 439.3401 is amended to read as follows: 19 (1) As used in this section, "violent offender" means any person who has been 20 convicted of or pled guilty to the commission of: 21 (a) A capital offense; 22 (b) A Class A felony; 23 (c) A Class B felony involving the death of the victim or serious physical injury 24 to a victim; 25 (d) An offense described in KRS 507.040 or 507.050 where the offense involves 26 the killing of a peace officer, firefighter, or emergency medical services 27 UNOFFICIAL COPY 24 RS BR 868 Page 9 of 23 XXXX 1/10/2024 3:56 PM Jacketed personnel while the peace officer, firefighter, or emergency medical services 1 personnel was acting in the line of duty; 2 (e) A Class B felony involving criminal attempt to commit murder under KRS 3 506.010 if the victim of the offense is a clearly identifiable peace officer, 4 firefighter, or emergency medical services personnel acting in the line of duty, 5 regardless of whether an injury results; 6 (f) The commission or attempted commission of a felony sexual offense 7 described in KRS Chapter 510; 8 (g) Use of a minor in a sexual performance as described in KRS 531.310; 9 (h) Promoting a sexual performance by a minor as described in KRS 531.320; 10 (i) Unlawful transaction with a minor in the first degree as described in KRS 11 530.064(1)(a); 12 (j) Human trafficking under KRS 529.100 involving commercial sexual activity 13 where the victim is a minor; 14 (k) Criminal abuse in the first degree as described in KRS 508.100; 15 (l) Burglary in the first degree accompanied by the commission or attempted 16 commission of an assault described in KRS 508.010, 508.020, 508.032, or 17 508.060; 18 (m) Burglary in the first degree accompanied by commission or attempted 19 commission of kidnapping as prohibited by KRS 509.040; 20 (n) Robbery in the first degree;[ or] 21 (o) Incest as described in KRS 530.020(2)(b) or (c); 22 (p) Possession or viewing of matter portraying a sexual performance by a 23 minor as described in KRS 531.335; or 24 (q) Distribution of matter portraying a sexual performance by a minor as 25 described in Section 16 of this Act. 26 The court shall designate in its judgment if the victim suffered death or serious 27 UNOFFICIAL COPY 24 RS BR 868 Page 10 of 23 XXXX 1/10/2024 3:56 PM Jacketed physical injury. 1 (2) A violent offender who has been convicted of a capital offense and who has 2 received a life sentence (and has not been sentenced to twenty-five (25) years 3 without parole or imprisonment for life without benefit of probation or parole), or a 4 Class A felony and receives a life sentence, or to death and his or her sentence is 5 commuted to a life sentence shall not be released on probation or parole until he or 6 she has served at least twenty (20) years in the penitentiary. Violent offenders may 7 have a greater minimum parole eligibility date than other offenders who receive 8 longer sentences, including a sentence of life imprisonment. 9 (3) (a) A violent offender who has been convicted of a capital offense or Class A 10 felony with a sentence of a term of years or Class B felony shall not be 11 released on probation or parole until he or she has served at least eighty-five 12 percent (85%) of the sentence imposed. 13 (b) A violent offender who has been convicted of a violation of KRS 507.040 14 where the victim of the offense was clearly identifiable as a peace officer, a 15 firefighter, or emergency medical services personnel, and the victim was 16 acting in the line of duty shall not be released on probation or parole until he 17 or she has served at least eighty-five percent (85%) of the sentence imposed. 18 (c) A violent offender who has been convicted of a violation of KRS 507.040 or 19 507.050 where the victim of the offense was a peace officer, a firefighter, or 20 emergency medical services personnel, and the victim was acting in the line 21 of duty shall not be released on probation or parole until he or she has served 22 at least fifty percent (50%) of the sentence imposed. 23 (d) Any offender who has been convicted of a homicide or fetal homicide offense 24 under KRS Chapter 507 or 507A in which the victim of the offense died as 25 the result of an overdose of a Schedule I controlled substance and who is not 26 otherwise subject to paragraph (a), (b), or (c) of this subsection shall not be 27 UNOFFICIAL COPY 24 RS BR 868 Page 11 of 23 XXXX 1/10/2024 3:56 PM Jacketed released on probation, shock probation, parole, conditional discharge, or other 1 form of early release until he or she has served at least fifty percent (50%) of 2 the sentence imposed. 3 (4) A violent offender shall not be awarded any credit on his or her sentence authorized 4 by KRS 197.045(1)(b)1. In no event shall a violent offender be given credit on his 5 or her sentence if the credit reduces the term of imprisonment to less than eighty- 6 five percent (85%) of the sentence. 7 (5) This section shall not apply to a person who has been determined by a court to have 8 been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard 9 to the offenses involving the death of the victim or serious physical injury to the 10 victim. The provisions of this subsection shall not extend to rape in the first degree 11 or sodomy in the first degree by the defendant. 12 (6) This section shall apply only to those persons who commit offenses after July 15, 13 1998. 14 (7) For offenses committed prior to July 15, 1998, the version of this statute in effect 15 immediately prior to that date shall continue to apply. 16 (8) The provisions of subsection (1) of this section extending the definition of "violent 17 offender" to persons convicted of or pleading guilty to robbery in the first degree 18 shall apply only to persons whose crime was committed after July 15, 2002. 19 Section 5. KRS 510.060 is amended to read as follows: 20 (1) A person is guilty of rape in the third degree when: 21 (a) Being twenty-one (21) years old or more, he or she engages in sexual 22 intercourse with another person less than sixteen (16) years old; 23 (b) Being at least ten (10) years older than a person who is sixteen (16) or 24 seventeen (17) years old at the time of sexual intercourse, he or she engages in 25 sexual intercourse with the person; 26 (c) Being twenty-one (21) years old or more, he or she engages in sexual 27 UNOFFICIAL COPY 24 RS BR 868 Page 12 of 23 XXXX 1/10/2024 3:56 PM Jacketed intercourse with another person less than eighteen (18) years old and for 1 whom he or she provides a foster family home as defined in KRS 600.020; 2 (d) Being a person in a position of authority or position of special trust, as defined 3 in KRS 532.045, he or she engages in sexual intercourse with a minor under 4 eighteen (18) years old with whom he or she comes into contact as a result of 5 that position; 6 (e) Being a jailer, or an employee, contractor, vendor, or volunteer of the 7 Department of Corrections, Department of Juvenile Justice, or a detention 8 facility as defined in KRS 520.010, or of an entity under contract with either 9 department or a detention facility for the custody, supervision, evaluation, or 10 treatment of offenders, he or she subjects a person who he or she knows is 11 incarcerated, supervised, evaluated, or treated by the Department of 12 Corrections, Department of Juvenile Justice, detention facility, or contracting 13 entity, to sexual intercourse; or 14 (f) Being a peace officer, while serving in his or her official capacity, he or she 15 subjects a person who the officer: 16 1. Arrested, held in custody, or investigated for commission of a traffic or 17 criminal offense; or 18 2. Knew or should have known was under arrest, held in custody, or being 19 investigated for commission of a traffic or criminal offense; 20 to sexual intercourse. 21 (2) Rape in the third degree is a Class D felony, unless it is a violation of subsection 22 (1)(d) of this section and the victim is less than twelve (12) years old, in which 23 case it is a Class C felony. 24 Section 6. KRS 510.090 is amended to read as follows: 25 (1) A person is guilty of sodomy in the third degree when: 26 (a) Being twenty-one (21) years old or more, he or she engages in deviate sexual 27 UNOFFICIAL COPY 24 RS BR 868 Page 13 of 23 XXXX 1/10/2024 3:56 PM Jacketed intercourse with another person less than sixteen (16) years old; 1 (b) Being at least ten (10) years older than a person who is sixteen (16) or 2 seventeen (17) years old at the time of deviate sexual intercourse, he or she 3 engages in deviate sexual intercourse with the person; 4 (c) Being twenty-one (21) years old or more, he or she engages in deviate sexual 5 intercourse with another person less than eighteen (18) years old and for 6 whom he or she provides a foster family home as defined in KRS 600.020; 7 (d) Being a person in a position of authority or position of special trust, as defined 8 in KRS 532.045, he or she engages in deviate sexual intercourse with a minor 9 less than eighteen (18) years old with whom he or she comes into contact as a 10 result of that position; 11 (e) Being a jailer, or an employee, contractor, vendor, or volunteer of the 12 Department of Corrections, Department of Juvenile Justice, or a detention 13 facility as defined in KRS 520.010, or of an entity under contract with either 14 department or a detention facility for the custody, supervision, evaluation, or 15 treatment of offenders, he or she subjects a person who he or she knows is 16 incarcerated, supervised, evaluated, or treated by the Department of 17 Corrections, Department of Juvenile Justice, detention facility, or contracting 18 entity, to deviate sexual intercourse; or 19 (f) Being a peace officer, while serving in his or her official capacity, he or she 20 subjects a person who the officer: 21 1. Arrested, held in custody, or investigated for commission of a traffic or 22 criminal offense; or 23 2. Knew or should have known was under arrest, held in custody, or being 24 investigated for commission of a traffic or criminal offense; 25 to deviate sexual intercourse. 26 (2) Sodomy in the third degree is a Class D felony, unless it is a violation of 27 UNOFFICIAL COPY 24 RS BR 868 Page 14 of 23 XXXX 1/10/2024 3:56 PM Jacketed subsection (1)(d) of this section and the victim is less than twelve (12) years old, 1 in which case it is a Class C felony. 2 Section 7. KRS 510.155 is amended to read as follows: 3 (1) It shall be unlawful for any person to knowingly use a communications system, 4 including computers, computer networks, computer bulletin boards, cellular 5 telephones, or any other electronic means, for the purpose of: 6 (a) Procuring or promoting the use of a minor, including a peace officer, or a 7 person working in coordination with law enforcement, posing as a minor if 8 the person believes that the peace officer or the person working in 9 coordination with law enforcement is a minor or is wanton or reckless in that 10 belief; or[;or] 11 (b) Procuring or promoting the use of a minor from an adult intermediary, 12 including a peace officer, or a person working in coordination with law 13 enforcement, posing as an adult intermediary for a minor if the person 14 believes that the peace officer or the person working in coordination with law 15 enforcement is an adult intermediary for a minor or is wanton or reckless in 16 that belief; 17 for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 18 510.090, 510.110, 529.100 where that offense involves commercial sexual activity, 19 or 530.064(1)(a), or KRS Chapter 531. 20 (2) No person shall be convicted of this offense and an offense specified in KRS 21 506.010, 506.030, 506.040, or 506.080 for a single course of conduct intended to 22 consummate in the commission of the same offense with the same minor or peace 23 officer. 24 (3) Each day a person knowingly uses a communications system for the purpose of 25 procuring or promoting the use of a minor shall be a separate violation of this 26 section. 27 UNOFFICIAL COPY 24 RS BR 868 Page 15 of 23 XXXX 1/10/2024 3:56 PM Jacketed (4) The solicitation of a minor through electronic communication under subsection (1) 1 of this section shall be prima facie evidence of the person's intent to commit the 2 offense, and the offense is complete at that point without regard to whether the 3 person met or attempted to meet the minor. 4 (5) This section shall apply to electronic communications originating within or received 5 within the Commonwealth. 6 (6) Except as provided in subsection (7) of this section, a violation of this section is 7 punishable as a Class C[Class D] felony. 8 (7) A violation of this section is punishable as a Class B[Class C] felony if: 9 (a) The minor or perceived minor procured or promoted is under twelve (12) 10 years old; 11 (b) The offender is a person in a position of authority or position of special 12 trust as those terms are defined in KRS 532.045; 13 (c) The offender is a registrant; or 14 (d)[(c)] A person enters into the Commonwealth from another jurisdiction for 15 the purpose of procuring or promoting the use of a minor or perceived minor 16 in violation of this section. 17 Section 8. KRS 529.100 is amended to read as follows: 18 (1) A person is guilty of human trafficking when the person intentionally subjects one 19 (1) or more persons to engage in: 20 (a) Forced labor or services; or 21 (b) Commercial sexual activity through the use of force, fraud, or coercion, 22 except that if the person is under the age of eighteen (18), the commercial 23 sexual activity need not involve force, fraud, or coercion. 24 (2) [(a) ]Human trafficking is a Class B[Class C] felony unless [it involves serious 25 physical injury to a trafficked person, in which case it is a Class B felony. 26 (b) If ]the victim of human trafficking is under eighteen (18) years of age, in 27 UNOFFICIAL COPY 24 RS BR 868 Page 16 of 23 XXXX 1/10/2024 3:56 PM Jacketed which case it is a Class A felony[the penalty for the offense shall be one (1) 1 level higher than the level otherwise specified in this section]. 2 Section 9. KRS 529.110 is amended to read as follows: 3 (1) A person is guilty of promoting human trafficking when the person intentionally: 4 (a) Benefits financially or receives anything of value from knowing participation 5 in human trafficking; or 6 (b) Recruits, entices, harbors, transports, provides, or obtains by any means, or 7 attempts to recruit, entice, harbor, transport, provide, or obtain by any means, 8 another person, knowing that the person will be subject to human trafficking. 9 (2) Promoting human trafficking is a Class C[Class D] felony unless a victim of the 10 trafficking is under eighteen (18), in which case it is a Class B[Class C] felony. 11 Section 10. KRS 531.010 is amended to read as follows: 12 As used in this chapter: 13 (1) "Distribute" means to transfer possession of, whether with or without 14 consideration;[.] 15 (2) "Matter" means any: 16 (a) Book, magazine, newspaper, or other printed or written material;[ or any] 17 (b) Picture, drawing, photograph, motion picture, live image transmitted over the 18 internet[Internet] or other electronic network, or other pictorial representation 19 or any statue or other figure;[, or any] 20 (c) Recording; transcription; or mechanical, chemical, or electrical reproduction; 21 or any other articles, equipment, machines, or materials; or[.] 22 (d) Computer-generated image, picture, or motion picture; 23 (3) "Obscene" means: 24 (a) To the average person, applying contemporary community standards, the 25 predominant appeal of the matter, taken as a whole, is to prurient interest in 26 sexual conduct;[ and] 27 UNOFFICIAL COPY 24 RS BR 868 Page 17 of 23 XXXX 1/10/2024 3:56 PM Jacketed (b) The matter depicts or describes the sexual conduct in a patently offensive 1 way; and 2 (c) The matter, taken as a whole, lacks serious literary, artistic, political, or 3 scientific value;[.] 4 (4) "Private erotic matter" means an obscene visual image, including a photograph, 5 film, video recording, or digital reproduction, of an identifiable person, depicting 6 sexual conduct or the exposure of uncovered human genitals, buttocks, or nipple of 7 the female breast. A person may be identifiable from the image itself or from 8 information distributed in connection with the visual image; and[.] 9 (5) "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, 10 sexual intercourse, or deviate[deviant] sexual intercourse; or physical contact with 11 the genitals, flagellation, or excretion for the purpose of sexual stimulation or 12 gratification. 13 Section 11. KRS 531.300 is amended to read as follows: 14 As used in KRS 531.080 and 531.310 to 531.370: 15 (1) "Child sex doll" means a doll, mannequin, or robot that is intended for sexual 16 stimulation or gratification and that has the features of, or has features that 17 resemble those of, a minor["Distribute" means to transfer possession of, whether 18 with or without consideration; 19 (2) "Matter" means any book, magazine, newspaper, or other printed or written 20 material or any picture, drawing, photograph, motion picture, live image transmitted 21 over the Internet or other electronic network, or other pictorial representation or any 22 statue or other figure, or any recording transcription or mechanical, chemical or 23 electrical reproduction or any other articles, equipment, machines, or materials]; 24 (2)[(3)] "Obscene" means the predominate appeal of the matter taken as a whole is to 25 a prurient interest in sexual conduct involving minors; 26 (3) "Performance" means any play, motion picture, photograph, dance, or any other 27 UNOFFICIAL COPY 24 RS BR 868 Page 18 of 23 XXXX 1/10/2024 3:56 PM Jacketed visual representation exhibited before an audience; 1 (4) "Promote" means to prepare, publish, print, procure or manufacture, or to offer 2 or agree to do the same; 3 (5)[(4)] "Sexual conduct by a minor" means: 4 (a) Acts of masturbation, homosexuality, lesbianism, bestiality[beastiality], 5 sexual intercourse, or deviate[deviant] sexual intercourse, actual or simulated; 6 (b) Physical contact with, or willful or intentional exhibition of the genitals; 7 (c) Flagellation or excretion for the purpose of sexual stimulation or gratification; 8 or 9 (d) The exposure, in an obscene manner, of the unclothed or apparently unclothed 10 human male or female genitals, pubic area or buttocks, or the female breast, 11 whether or not subsequently obscured by a mark placed thereon, or otherwise 12 altered, in any resulting motion picture, photograph, or other visual 13 representation, exclusive of exposure portrayed in matter of a private, family 14 nature not intended for distribution outside the family;[ 15 (5) "Performance" means any play, motion picture, photograph or dance. Performance 16 also means any other visual representation exhibited before an audience;] 17 (6) "Sexual performance" means any performance or part thereof which includes sexual 18 conduct by a minor; and 19 (7) "Traffic" means to manufacture, distribute, sell, transfer, or possess with intent 20 to manufacture, distribute, sell, or transfer["Promote" means to prepare, publish, 21 print, procure or manufacture, or to offer or agree to do the same]. 22 SECTION 12. A NEW SECTION OF KRS 531.310 TO 531.370 IS CREATED 23 TO READ AS FOLLOWS: 24 (1) A person is guilty of possession of a child sex doll when he or she knowingly 25 possesses a child sex doll. 26 (2) Possession of a child sex doll is a Class D felony. 27 UNOFFICIAL COPY 24 RS BR 868 Page 19 of 23 XXXX 1/10/2024 3:56 PM Jacketed SECTION 13. A NEW SECTION OF KRS 531.310 TO 531.370 IS CREATED 1 TO READ AS FOLLOWS: 2 (1) A person is guilty of trafficking a child sex doll when he or she knowingly traffics 3 a child sex doll. 4 (2) Trafficking a child sex doll is a Class C felony. 5 SECTION 14. A NEW SECTION OF KRS 531.310 TO 531.370 IS CREATED 6 TO READ AS FOLLOWS: 7 (1) A person is guilty of importing a child sex doll when he or she knowingly 8 transports a child sex doll into the Commonwealth by any means with the intent 9 to distribute, sell, or transfer the child sex doll. 10 (2) Importing a child sex doll is a Class C felony. 11 SECTION 15. A NEW SECTION OF KRS 531.310 TO 531.370 IS CREATED 12 TO READ AS FOLLOWS: 13 (1) A person is guilty of advancing a child sex doll when he or she knowingly 14 procures or solicits patrons for a child sex doll or provides premises for the use of 15 a child sex doll. 16 (2) Advancing a child sex doll is a Class C felony. 17 Section 16. KRS 531.340 is amended to read as follows: 18 (1) A person is guilty of distribution of matter portraying a sexual performance by a 19 minor when, having knowledge of its content and character, he or she: 20 (a) Sends or causes to be sent into this state for sale or distribution;[ or] 21 (b) Brings or causes to be brought into this state for sale or distribution; or 22 (c) In this state, he or she: 23 1. Exhibits for profit or gain;[ or] 24 2. Distributes;[ or] 25 3. Offers to distribute; or 26 4. Has in his or her possession with intent to distribute, exhibit for profit or 27 UNOFFICIAL COPY 24 RS BR 868 Page 20 of 23 XXXX 1/10/2024 3:56 PM Jacketed gain or offer to distribute, any matter portraying a sexual performance 1 by a minor. 2 (2) Any person who has in his or her possession more than one (1) unit of matter, as 3 defined by subsection (2) of Section 10 of this Act,[material coming within the 4 provision of KRS 531.300(2)] shall be rebuttably presumed to have that 5 matter[such material] in his or her possession with the intent to distribute it. 6 (3) Distribution of matter portraying a sexual performance by a minor is: 7 (a) A [Class D felony for the first offense, and a ]Class C felony [for each 8 subsequent offense, ]if the person knows that the minor portrayed is less than 9 eighteen (18) years old at the time of the sexual performance; and 10 (b) A [Class C felony for the first offense, and a ]Class B felony [for each 11 subsequent offense, ]if the person knows that the minor portrayed is less than 12 twelve (12) years old at the time of the sexual performance. 13 Section 17. KRS 532.060 is amended to read as follows: 14 (1) A sentence of imprisonment for a felony shall be an indeterminate sentence, the 15 maximum of which shall be fixed within the limits provided by subsection (2) of 16 this section, and subject to modification by the trial judge pursuant to KRS 17 532.070. 18 (2) Unless otherwise provided by law, the authorized maximum terms of imprisonment 19 for felonies are: 20 (a) For a Class A felony, not less than twenty (20) years nor more than fifty (50) 21 years, or life imprisonment; 22 (b) For a Class B felony, not less than ten (10) years nor more than twenty (20) 23 years; 24 (c) For a Class C felony, not less than five (5) years nor more than ten (10) years; 25 and 26 (d) For a Class D felony, not less than one (1) year nor more than five (5) years. 27 UNOFFICIAL COPY 24 RS BR 868 Page 21 of 23 XXXX 1/10/2024 3:56 PM Jacketed (3) For any felony specified in KRS Chapter 510 or[,] KRS 529.100, 529.110, 530.020, 1 530.064(1)(a), [or ]531.310, 531.320, 531.335, or 531.340, the sentence shall 2 include an additional five (5) year period of postincarceration supervision which 3 shall be added to the maximum sentence rendered for the offense. During this 4 period of postincarceration supervision, if a defendant violates the provisions of 5 postincarceration supervision, the defendant may be reincarcerated for: 6 (a) The remaining period of his or her initial sentence, if any is remaining; and 7 (b) The entire period of postincarceration supervision, or if the initial sentence 8 has been served, for the remaining period of postincarceration supervision. 9 (4) In addition to the penalties provided in this section, for any person subject to a 10 period of postincarceration supervision pursuant to KRS 532.400 his or her 11 sentence shall include an additional one (1) year period of postincarceration 12 supervision following release from incarceration upon expiration of sentence if the 13 offender is not otherwise subject to another form of postincarceration supervision. 14 During this period of postincarceration supervision, if an offender violates the 15 provisions of supervision, the offender may be reincarcerated for the remaining 16 period of his or her postincarceration supervision. 17 (5) The actual time of release within the maximum established by subsection (1) of this 18 section, or as modified pursuant to KRS 532.070, shall be determined under 19 procedures established elsewhere by law. 20 Section 18. KRS 532.200 is amended to read as follows: 21 As used in KRS 532.210 to 532.250, unless the context otherwise requires: 22 (1) "Home" means the temporary or permanent residence of a defendant consisting of 23 the actual living area. If more than one (1) residence or family is located on a single 24 piece of property, "home" does not include the residence of any other person who is 25 not part of the social unit formed by the defendant's immediate family. A hospital, 26 nursing care facility, hospice, half-way house, group home, residential treatment 27 UNOFFICIAL COPY 24 RS BR 868 Page 22 of 23 XXXX 1/10/2024 3:56 PM Jacketed facility, or boarding house may serve as a "home" under this section; 1 (2) "Home incarceration" means the use of a monitoring device approved by the 2 commissioner of the Department of Corrections to facilitate a prisoner's ability to 3 maintain gainful employment or to participate in programs approved as a condition 4 of his or her incarceration, or both, using the person's home for purposes of 5 confinement; 6 (3) "Violent felony offense" means an offense that would classify a person as a violent 7 offender under Section 4 of this Act[defined in KRS 507.020 (murder), 507.030 8 (manslaughter in the first degree), 508.010 (assault in the first degree), 508.020 9 (assault in the second degree), 509.040 (kidnapping), 510.040 (rape in the first 10 degree), 510.070 (sodomy in the first degree), 510.110 (sexual abuse in the first 11 degree), 511.020 (burglary in the first degree), 513.020 (arson in the first degree), 12 513.030 (arson in the second degree), 513.040 (arson in the third degree), 515.020 13 (robbery in the first degree), 515.030 (robbery in the second degree), 520.020 14 (escape in the first degree), any criminal attempt to commit the offense (KRS 15 506.010), or conviction as a persistent felony offender (KRS 532.080) when the 16 offender has a felony conviction for any of the above-listed offenses within the five 17 (5) year period preceding the date of the latest conviction]; 18 (4) "Terminal illness" means a medically recognized disease for which the prognosis is 19 death within six (6) months to a reasonable degree of medical certainty; and 20 (5) "Approved monitoring device" means an electronic device or apparatus which is 21 capable of recording, tracking, or transmitting information as to the prisoner's 22 location or verifying the prisoner's presence or non-presence in the home, or both. 23 The devices shall be minimally intrusive. Devices shall not be used without the 24 prisoner's knowledge to record or transmit: 25 (a) Visual images other than the defendant's face; 26 (b) Oral or wire communications or any auditory sound other than the defendant's 27 UNOFFICIAL COPY 24 RS BR 868 Page 23 of 23 XXXX 1/10/2024 3:56 PM Jacketed voice; or 1 (c) Information as to the prisoner's activities while inside the home. 2

CHAPTER 106 Legislative Research Commission PDF Version 1 CHAPTER 106 ( HB 278 ) AN ACT relating to the protection of children. Be it enacted by the General Assembly of the Commonwealth of Kentucky: Section 1. KRS 15A.190 is amended to read as follows: The Justice and Public Safety Cabinet, in consultation with the Cabinet for Health and Family Services, the Kentucky Commission on Women, and any other agency concerned with particular acts of criminal activity, shall: (1) Design, print, and distribute to all law enforcement agencies in the Commonwealth, an electronic or paper uniform reporting form, to be known as the JC-3, which provides statistical information relating to the crimes involving: (a) Domestic violence;[,] (b) Child abuse;[,] (c) Childhood sexual assault or abuse as defined in Section 3 of this Act; (d) Victimization of the elderly, including but not limited to elder abuse, neglect, and exploitation and other crimes against the elderly;[,] or (e) Any other particular area of criminal activity deemed by the secretary of justice and public safety to require research as to its frequency; and (2) Promulgate administrative regulations, in accordance with KRS Chapter 13A, to provide that the information required in KRS 209A.122 be provided to the Criminal Justice Statistical Analysis Center. Section 2. KRS 160.380 is amended to read as follows: (1) As used in this section: (a) "Administrative finding of child abuse or neglect" means a substantiated finding of child abuse or neglect issued by the Cabinet for Health and Family Services that is: 1. Not appealed through an administrative hearing conducted in accordance with KRS Chapter 13B; 2. Upheld at an administrative hearing conducted in accordance with KRS Chapter 13B and not appealed to a Circuit Court; or 3. Upheld by a Circuit Court in an appeal of the results of an administrative hearing conducted in accordance with KRS Chapter 13B; (b) "Alternative education program" means a program that exists to meet the needs of students that cannot be addressed in a traditional classroom setting but through the assignment of students to alternative classrooms, centers, or campuses that are designed to remediate academic performance, improve behavior, or provide an enhanced learning experience. Alternative education programs do not include career or technical centers or departments; (c) "Clear CA/N check" means a letter from the Cabinet for Health and Family Services indicating that there are no administrative findings of child abuse or neglect relating to a specific individual; (d) "Relative" means father, mother, brother, sister, husband, wife, son and daughter; and (e) "Vacancy" means any certified position opening created by the resignation, dismissal, nonrenewal of contract, transfer, or death of a certified staff member of a local school district, or a new position created in a local school district for which certification is required. However, if an employer-employee bargained contract contains procedures for filling certified position openings created by the resignation, dismissal, nonrenewal of contract, transfer, or death of a certified staff member, or creation of a new position for which certification is required, a vacancy shall not exist, unless certified positions remain open after compliance with those procedures. ACTS OF THE GENERAL ASSEMBLY 2 (2) Except as provided in KRS 160.346, the school district personnel actions identified in this section shall be carried out as follows: (a) All appointments, promotions, and transfers of principals, supervisors, teachers, and other public school employees shall be made only by the superintendent of schools, who shall notify the board of the action taken. All employees of the local district shall have the qualifications prescribed by law and by the administrative regulations of the Kentucky Board of Education and of the employing board. Supervisors, principals, teachers, and other employees may be appointed by the superintendent for any school year at any time after February 1 preceding the beginning of the school year. No superintendent of schools shall appoint or transfer himself or herself to another position within the school district; (b) When a vacancy occurs in a local school district, the superintendent shall submit the job posting to the statewide job posting system described in KRS 160.152 fifteen (15) days before the position shall be filled. The local school district shall post position openings in the local board office for public viewing; (c) When a vacancy needs to be filled in less than fifteen (15) days' time to prevent disruption of necessary instructional or support services of the school district, the superintendent may seek a waiver from the chief state school officer. If the waiver is approved, the appointment shall not be made until the person recommended for the position has been approved by the chief state school officer. The chief state school officer shall respond to a district's request for waiver or for approval of an appointment within two (2) working days; and (d) When a vacancy occurs in a local district, the superintendent shall conduct a search to locate minority teachers to be considered for the position. The superintendent shall, pursuant to administrative regulations of the Kentucky Board of Education, report annually the district's recruitment process and the activities used to increase the percentage of minority teachers in the district. (3) Restrictions on employment of relatives shall be as follows: (a) No relative of a superintendent of schools shall be an employee of the school district. However, this shall not apply to a relative who is a classified or certified employee of the school district for at least thirty-six (36) months prior to the superintendent assuming office and who is qualified for the position the employee holds. A superintendent's spouse who has previously been employed in a school system may be an employee of the school district. A superintendent's spouse who is employed under this provision shall not hold a position in which the spouse supervises certified or classified employees. A superintendent's spouse may supervise teacher aides and student teachers. However, the superintendent shall not promote a relative who continues employment under an exception of this subsection; (b) No superintendent shall employ a relative of a school board member of the district; (c) No principal's relative shall be employed in the principal's school; and (d) A relative that is ineligible for employment under paragraph (a), (b), or (c) of this subsection may be employed as a substitute for a certified or classified employee if the relative is not: 1. A regular full-time or part-time employee of the district; 2. Accruing continuing contract status or any other right to continuous employment; 3. Receiving fringe benefits other than those provided other substitutes; or 4. Receiving preference in employment or assignment over other substitutes. (4) No superintendent shall assign a certified or classified staff person to an alternative education program as part of any disciplinary action taken pursuant to KRS 161.011 or 161.790 as part of a corrective action plan established pursuant to the local district evaluation plan. (5) No superintendent shall[ initially] employ in any position in the district any person who: (a) Has been convicted of an offense that would classify a person as[is] a violent offender under KRS 439.3401;[or] (b) Has been convicted of a sex crime as defined by KRS 17.500 or a misdemeanor offense under KRS Chapter 510;[17.165 which is classified as a felony or] (c) Is required to register as a sex offender under KRS 17.500 to 17.580; or CHAPTER 106 Legislative Research Commission PDF Version 3 (d) Has[persons with] an administrative finding of child abuse or neglect in records maintained by the Cabinet for Health and Family Services.[ The superintendent may employ, at his discretion, except at a Kentucky Educational Collaborative for State Agency Children program, persons convicted of sex crimes classified as a misdemeanor.] (6) Requirements for background checks shall be as follows: (a) A superintendent shall require the following individuals to submit to a national and state criminal background check by the Department of Kentucky State Police and the Federal Bureau of Investigation and have a clear CA/N check, provided by the individual: 1. Each new certified or classified hire; 2. A nonfaculty coach or nonfaculty assistant as defined under KRS 161.185; 3. A student teacher; 4. A school-based decision making council parent member; and 5. Any adult who is permitted access to school grounds on a regularly scheduled and continuing basis pursuant to a written agreement for the purpose of providing services directly to a student or students as part of a school-sponsored program or activity; (b) 1. The requirements of paragraph (a) of this subsection shall not apply to: a. Classified and certified individuals employed by the school district prior to June 27, 2019; b. Certified individuals who were employed in another certified position in a Kentucky school district within six (6) months of the date of hire and who had previously submitted to a national and state criminal background check and who have a clear CA/N check for the previous employment; or c. Student teachers who have submitted to and provide a copy of a national and state criminal background check by the Department of Kentucky State Police and the Federal Bureau of Investigation through an accredited teacher education institution in which the student teacher is enrolled and who have a clear CA/N check. 2. The Education Professional Standards Board may promulgate administrative regulations to impose additional qualifications to meet the requirements of Public Law 92-544; (c) A parent member may serve prior to the receipt of the criminal history background check and CA/N letter required by paragraph (a) of this subsection but shall be removed from the council on receipt by the school district of a report documenting a record of abuse or neglect, or a sex crime or criminal offense against a victim who is a minor as defined in KRS 17.500, or as a violent offender as defined in KRS 17.165, and no further procedures shall be required; and (d) A superintendent may require a volunteer or a visitor to submit to a national and state criminal history background check by the Department of Kentucky State Police and the Federal Bureau of Investigation and have a clear CA/N check, provided by the individual. (7) (a) If a certified or classified position remains unfilled after July 31 or if a vacancy occurs during a school term, a superintendent may employ an individual, who will have supervisory or disciplinary authority over minors, on probationary status pending receipt of the criminal history background check and a clear CA/N check, provided by the individual. Application for the criminal record and a request for a clear CA/N check of a probationary employee shall be made no later than the date probationary employment begins. (b) Employment shall be contingent on the receipt of the criminal history background check documenting that the probationary employee has no record of a sex crime nor as a violent offender as defined in KRS 17.165 and receipt of a letter, provided by the individual, from the Cabinet for Health and Family Services stating the employee is clear to hire based on no administrative findings of child abuse or neglect found through a background check of child abuse and neglect records maintained by the Cabinet for Health and Family Services. (c) Notwithstanding KRS 161.720 to 161.800 or any other statute to the contrary, probationary employment under this section shall terminate on receipt by the school district of a criminal history ACTS OF THE GENERAL ASSEMBLY 4 background check documenting a record of a sex crime or as a violent offender as defined in KRS 17.165 and no further procedures shall be required. (8) The provisions of KRS 161.790 shall apply to terminate employment of a certified employee on the basis of a criminal record other than a record of a sex crime or as a violent offender as defined in KRS 17.165, or on the basis of a CA/N check showing an administrative finding of child abuse or neglect. (9) (a) All fingerprints requested under this section shall be on an applicant fingerprint card provided by the Department of Kentucky State Police. The fingerprint cards shall be forwarded to the Federal Bureau of Investigation from the Department of Kentucky State Police after a state criminal background check is conducted. The results of the state and federal criminal background check shall be sent to the hiring superintendent. Any fee charged by the Department of Kentucky State Police, the Federal Bureau of Investigation, and the Cabinet for Health and Family Services shall be an amount no greater than the actual cost of processing the request and conducting the search. (b) Each application form, provided by the employer to an applicant for a certified or classified position, shall conspicuously state the following: "FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE CRIMINAL HISTORY BACKGROUND CHECK AND A LETTER, PROVIDED BY THE INDIVIDUAL, FROM THE CABINET FOR HEALTH AND FAMILY SERVICES STATING THE APPLICANT HAS NO ADMINISTRATIVE FINDINGS OF CHILD ABUSE OR NEGLECT FOUND THROUGH A BACKGROUND CHECK OF CHILD ABUSE AND NEGLECT RECORDS MAINTAINED BY THE CABINET FOR HEALTH AND FAMILY SERVICES." (c) Each application form for a district position shall require the applicant to: 1. Identify the states in which he or she has maintained residency, including the dates of residency; and 2. Provide picture identification. (10) Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, when an employee of the school district is charged with any offense which is classified as a felony, the superintendent may transfer the employee to a second position until such time as the employee is found not guilty, the charges are dismissed, the employee is terminated, or the superintendent determines that further personnel action is not required. The employee shall continue to be paid at the same rate of pay he or she received prior to the transfer. If an employee is charged with an offense outside of the Commonwealth, this provision may also be applied if the charge would have been treated as a felony if committed within the Commonwealth. Transfers shall be made to prevent disruption of the educational process and district operations and in the interest of students and staff and shall not be construed as evidence of misconduct. (11) Notwithstanding any law to the contrary, each certified and classified employee of the school district shall notify the superintendent if he or she has been found by the Cabinet for Health and Family Services to have abused or neglected a child, and if he or she has waived the right to appeal a substantiated finding of child abuse or neglect or if the substantiated incident was upheld upon appeal. Any failure to report this finding shall result in the certified or classified employee being subject to dismissal or termination. (12) The form for requesting a CA/N check shall be made available on the Cabinet for Health and Family Services website. Section 3. KRS 413.249 is amended to read as follows: (1) As used in this section: (a) "Childhood sexual assault or abuse" means an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a misdemeanor or felony in: 1. KRS Chapter 510; 2. KRS 529.040 when the defendant advances or profits from the prostitution of a minor; 3. KRS 529.100 when the offense involves commercial sexual activity; 4. KRS 529.110 when the offense involves commercial sexual activity; 5. KRS 530.020 or 530.064(1)(a); 6. KRS Chapter 531 involving a minor or depiction of a minor; or CHAPTER 106 Legislative Research Commission PDF Version 5 7. KRS 506.010 or 506.030 for attempt to commit or solicitation to commit any of the offenses described in subparagraphs 1. to 6. of this paragraph. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual assault or abuse; (b) "Entity" means a firm, partnership, company, corporation, trustee, association, or any private or public entity, including the Commonwealth, a city, county, urban-county, consolidated local government, unified local government, or charter county government, or any of their agencies, departments, or any KRS 58.180 nonprofit nonstock corporation; and (c) "Injury or illness" means either a physical or psychological injury or illness. (2) A civil action for recovery of damages for injury or illness suffered as a result of childhood sexual assault or abuse shall be brought [before whichever of the following periods last expires: (a) Within ten (10) years of the commission of the act or the last of a series of acts by the same perpetrator; (b) Within ten (10) years of the date the victim knew, or should have known, of the act; (c) ]within ten (10) years after the victim attains the age of eighteen (18) years[; or (d) Within ten (10) years of the conviction of a civil defendant for an offense included in the definition of childhood sexual assault or abuse]. (3) The time period[periods] set forth in subsection (2) of this section shall apply to a civil action for recovery of damages for injury or illness against:[;] (a) A person alleged to have committed the act of childhood sexual assault or abuse; or (b) An entity that owed a duty of care to the plaintiff, where a wrongful or negligent act by an employee, officer, director, official, volunteer, representative, or agent of the entity was a legal cause of the childhood sexual assault or abuse that resulted in the injury to the plaintiff. (4) [If a complaint is filed alleging that an act of childhood sexual assault or abuse occurred more than ten (10) years prior to the date that the action is commenced, ]The complaint shall be accompanied by a motion to seal the record and the complaint shall immediately be sealed by the clerk of the court. The complaint shall remain sealed until: (a) The court rules upon the motion to seal; (b) Any motion to dismiss under CR 12.02 is ruled upon, and if the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed unless opened by a higher court; or (c) The defendant files an answer and a motion to seal the record upon grounds that a valid factual defense exists, to be raised in a motion for summary judgment pursuant to CR 56. The record shall remain sealed by the clerk until the court rules upon the defendant's motion to close the record. If the court grants the motion to close, the record shall remain sealed until the defendant's motion for summary judgment is granted. The complaint, motions, and other related papers or pleadings shall remain sealed unless opened by a higher court. (5) A victim of childhood sexual assault or abuse shall not have a cause of action against a third party, unless the third party failed to act as a reasonable person or entity in complying with their duties to the victim.[ If a victim of childhood sexual assault or abuse has a cause of action under this section, the cause of action shall be commenced within the time period set forth in subsection (2) of this section.] (6) (a) Neither the husband-wife nor any professional-client/patient privilege, except the attorney-client and clergy-penitent privilege, shall be a ground for excluding evidence regarding childhood sexual assault or abuse or the cause thereof when an exception to the Kentucky Rules of Evidence is met, in any judicial proceeding. This subsection shall also apply in any criminal proceeding in District or Circuit Court regarding childhood sexual assault or abuse. (b) As used in paragraph (a) of this subsection, the clergy-penitent privilege is limited to information received solely through confidential communications with a clergy member, privately or in a confessional setting, when in the course of the discipline or practice of the clergy member's church, denomination, or organization, he or she is authorized or accustomed to hearing those communications, ACTS OF THE GENERAL ASSEMBLY 6 and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret. (7) (a) As was its intention with the passage of 2017 Ky. Acts ch. 114, sec. 2, the General Assembly hereby states that the amendments enacted in 2017 Ky. Acts ch. 114, sec. 2 shall be applied retroactively to actions accruing before its effective date of June 29, 2017. This section is a remedial statute which is to be given the most liberal interpretation to provide remedies for victims of childhood sexual assault or abuse. (b) Notwithstanding any provision of law to the contrary, any claim for childhood sexual assault or abuse that was barred as of March 23, 2021, because the applicable statute of limitations had expired is hereby revived, and the action may be brought if commenced within five (5) years of the date on which the applicable statute of limitations expired. Section 4. KRS 510.050 is amended to read as follows: (1) A person is guilty of rape in the second degree when: (a) Being eighteen (18) years old or more, he or she engages in sexual intercourse with another person less than fourteen (14) years old; or (b) He or she engages in sexual intercourse with another person who is mentally incapacitated or who is incapable of consent because he or she is an individual with an intellectual disability. (2) Rape in the second degree is a Class C felony, unless the defendant is a person in a position of authority or position of special trust as those terms are defined in KRS 532.045, in which case it is a Class B felony. Section 5. KRS 510.080 is amended to read as follows: (1) A person is guilty of sodomy in the second degree when: (a) Being eighteen (18) years old or more, he or she engages in deviate sexual intercourse with another person less than fourteen (14) years old; or (b) He or she engages in deviate sexual intercourse with another person who is mentally incapacitated or who is incapable of consent because he or she is an individual with an intellectual disability. (2) Sodomy in the second degree is a Class C felony, unless the defendant is a person in a position of authority or position of special trust as those terms are defined in KRS 532.045, in which case it is a Class B felony. Section 6. KRS 510.155 is amended to read as follows: (1) It shall be unlawful for any person to knowingly use a communications system, including computers, computer networks, computer bulletin boards, cellular telephones, or any other electronic means, for the purpose of: (a) Procuring or promoting the use of a minor, including a peace officer, or a person working in coordination with law enforcement, posing as a minor if the person believes that the peace officer or the person working in coordination with law enforcement is a minor or is wanton or reckless in that belief; or[;or] (b) Procuring or promoting the use of a minor from an adult intermediary, including a peace officer, or a person working in coordination with law enforcement, posing as an adult intermediary for a minor if the person believes that the peace officer or the person working in coordination with law enforcement is an adult intermediary for a minor or is wanton or reckless in that belief; for any activity in violation of KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.100 where that offense involves commercial sexual activity, or 530.064(1)(a), or KRS Chapter 531. (2) No person shall be convicted of this offense and an offense specified in KRS 506.010, 506.030, 506.040, or 506.080 for a single course of conduct intended to consummate in the commission of the same offense with the same minor or peace officer. (3) Each day a person knowingly uses a communications system for the purpose of procuring or promoting the use of a minor shall be a separate violation of this section. (4) The solicitation of a minor through electronic communication under subsection (1) of this section shall be prima facie evidence of the person's intent to commit the offense, and the offense is complete at that point without regard to whether the person met or attempted to meet the minor. CHAPTER 106 Legislative Research Commission PDF Version 7 (5) This section shall apply to electronic communications originating within or received within the Commonwealth. (6) Except as provided in subsection (7) of this section, a violation of this section is punishable as a Class C[Class D] felony. (7) A violation of this section is punishable as a Class B[Class C] felony if: (a) The minor or perceived minor procured or promoted is under twelve (12) years old; (b) The offender is a person in a position of authority or position of special trust as those terms are defined in KRS 532.045; (c) The offender is a registrant;[ or] (d)[(c)] A person enters into the Commonwealth from another jurisdiction for the purpose of procuring or promoting the use of a minor or perceived minor in violation of this section; or (e) The minor or perceived minor procured or promoted is for an activity in violation of Section 7 of this Act where that offense involves commercial sexual activity. Section 7. KRS 529.100 is amended to read as follows: (1) A person is guilty of human trafficking when the person intentionally subjects one (1) or more persons to engage in: (a) Forced labor or services; or (b) Commercial sexual activity through the use of force, fraud, or coercion, except that if the person is under the age of eighteen (18), the commercial sexual activity need not involve force, fraud, or coercion. (2) [(a) ]Human trafficking is a Class B[Class C] felony unless [it involves serious physical injury to a trafficked person, in which case it is a Class B felony. (b) If ]the victim of human trafficking is under eighteen (18) years of age, in which case it is a Class A felony[the penalty for the offense shall be one (1) level higher than the level otherwise specified in this section]. Section 8. KRS 529.110 is amended to read as follows: (1) A person is guilty of promoting human trafficking when the person intentionally: (a) Benefits financially or receives anything of value from knowing participation in human trafficking; or (b) Recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person, knowing that the person will be subject to human trafficking. (2) Promoting human trafficking is a Class C[Class D] felony unless a victim of the trafficking is under eighteen (18), in which case it is a Class B[Class C] felony. Section 9. KRS 531.340 is amended to read as follows: (1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she: (a) Sends or causes to be sent into this state for sale or distribution;[ or] (b) Brings or causes to be brought into this state for sale or distribution; or (c) In this state, he or she: 1. Exhibits for profit or gain;[ or] 2. Distributes;[ or] 3. Offers to distribute; or 4. Has in his or her possession with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying a sexual performance by a minor. ACTS OF THE GENERAL ASSEMBLY 8 (2) Any person who has in his or her possession more than one (1) unit of matter, as defined by[material coming within the provision of] KRS 531.300(2) shall be rebuttably presumed to have that matter[such material] in his or her possession with the intent to distribute it. (3) Distribution of matter portraying a sexual performance by a minor is: (a) A [Class D felony for the first offense, and a ]Class C felony [for each subsequent offense, ]if the person knows that the minor portrayed is less than eighteen (18) years old at the time of the sexual performance; and (b) A [Class C felony for the first offense, and a ]Class B felony [for each subsequent offense, ]if the person knows that the minor portrayed is less than twelve (12) years old at the time of the sexual performance. (4) Any person convicted under this section shall not be released on probation or parole until he or she has served at least eighty-five percent (85%) of the sentence imposed. Section 10. KRS 532.060 is amended to read as follows: (1) A sentence of imprisonment for a felony shall be an indeterminate sentence, the maximum of which shall be fixed within the limits provided by subsection (2) of this section, and subject to modification by the trial judge pursuant to KRS 532.070. (2) Unless otherwise provided by law, the authorized maximum terms of imprisonment for felonies are: (a) For a Class A felony, not less than twenty (20) years nor more than fifty (50) years, or life imprisonment; (b) For a Class B felony, not less than ten (10) years nor more than twenty (20) years; (c) For a Class C felony, not less than five (5) years nor more than ten (10) years; and (d) For a Class D felony, not less than one (1) year nor more than five (5) years. (3) For any felony specified in KRS Chapter 510 or[,] KRS 530.020, 530.064(1)(a), [or ]531.310, 531.320, 531.335, or Section 7, 8, or 9 of this Act, the sentence shall include an additional five (5) year period of postincarceration supervision which shall be added to the maximum sentence rendered for the offense. During this period of postincarceration supervision, if a defendant violates the provisions of postincarceration supervision, the defendant may be reincarcerated for: (a) The remaining period of his or her initial sentence, if any is remaining; and (b) The entire period of postincarceration supervision, or if the initial sentence has been served, for the remaining period of postincarceration supervision. (4) In addition to the penalties provided in this section, for any person subject to a period of postincarceration supervision pursuant to KRS 532.400 his or her sentence shall include an additional one (1) year period of postincarceration supervision following release from incarceration upon expiration of sentence if the offender is not otherwise subject to another form of postincarceration supervision. During this period of postincarceration supervision, if an offender violates the provisions of supervision, the offender may be reincarcerated for the remaining period of his or her postincarceration supervision. (5) The actual time of release within the maximum established by subsection (1) of this section, or as modified pursuant to KRS 532.070, shall be determined under procedures established elsewhere by law. Section 11. KRS 532.200 is amended to read as follows: As used in KRS 532.210 to 532.250, unless the context otherwise requires: (1) "Home" means the temporary or permanent residence of a defendant consisting of the actual living area. If more than one (1) residence or family is located on a single piece of property, "home" does not include the residence of any other person who is not part of the social unit formed by the defendant's immediate family. A hospital, nursing care facility, hospice, half-way house, group home, residential treatment facility, or boarding house may serve as a "home" under this section; (2) "Home incarceration" means the use of a monitoring device approved by the commissioner of the Department of Corrections to facilitate a prisoner's ability to maintain gainful employment or to participate in programs approved as a condition of his or her incarceration, or both, using the person's home for purposes of confinement; CHAPTER 106 Legislative Research Commission PDF Version 9 (3) "Violent felony offense" means an offense that would classify a person as a violent offender under KRS 439.3401[defined in KRS 507.020 (murder), 507.030 (manslaughter in the first degree), 508.010 (assault in the first degree), 508.020 (assault in the second degree), 509.040 (kidnapping), 510.040 (rape in the first degree), 510.070 (sodomy in the first degree), 510.110 (sexual abuse in the first degree), 511.020 (burglary in the first degree), 513.020 (arson in the first degree), 513.030 (arson in the second degree), 513.040 (arson in the third degree), 515.020 (robbery in the first degree), 515.030 (robbery in the second degree), 520.020 (escape in the first degree), any criminal attempt to commit the offense (KRS 506.010), or conviction as a persistent felony offender (KRS 532.080) when the offender has a felony conviction for any of the above-listed offenses within the five (5) year period preceding the date of the latest conviction]; (4) "Terminal illness" means a medically recognized disease for which the prognosis is death within six (6) months to a reasonable degree of medical certainty; and (5) "Approved monitoring device" means an electronic device or apparatus which is capable of recording, tracking, or transmitting information as to the prisoner's location or verifying the prisoner's presence or non- presence in the home, or both. The devices shall be minimally intrusive. Devices shall not be used without the prisoner's knowledge to record or transmit: (a) Visual images other than the defendant's face; (b) Oral or wire communications or any auditory sound other than the defendant's voice; or (c) Information as to the prisoner's activities while inside the home. Section 12. The General Assembly hereby finds and declares that: (1) Pornography is creating a public health crisis and having a corroding influence on minors; (2) Due to advances in technology, the universal availability of the internet, and limited age verification requirements, minors are being exposed to pornography earlier in age; (3) Pornography contributes to the hyper-sexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior; (4) Pornography may also impact brain development and functioning, contribute to emotional and medical illnesses, shape deviate sexual arousal, and lead to difficulty in forming or maintaining positive, intimate relationships, as well as harmful sexual behaviors and addiction; and (5) It is in the interest of the people of the Commonwealth of Kentucky to protect minors from being able to access obscene or erotic matter through the internet or other digital networks. SECTION 13. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: As used in Sections 13 to 18 of this Act: (1) "Age verification" means verifying that the person seeking access to the matter is eighteen (18) years old or older, through any of the following methods: (a) State-issued form of identification, including but not limited to an operator's license or personal identification card issued under KRS Chapter 186 that establishes age; (b) Identification issued by any agency of the United States government that establishes age; or (c) Any commercially reasonable method of identification that relies on public or private transactional data to verify that the person attempting to access the matter is at least eighteen (18) years of age or older; (2) "Covered platform" means an entity that: (a) Is a website; and (b) Is in the regular course of trade or business to create, host, or make available content that meets the definition of matter harmful to minors under subsection (8) of this section, with the objective of earning a profit, regardless of whether: 1. The entity actually earns a profit on the activities described in this paragraph; or ACTS OF THE GENERAL ASSEMBLY 10 2. Creating, hosting, or making available content that meets the definition of matter harmful to minors under subsection (8) of this section is the sole source of income or principal business of the entity; (3) "Distribute" means to issue, sell, give, provide, deliver, transfer, transmit, circulate, or disseminate by any means, with or without consideration; (4) "Information content provider" has the same meaning as in 47 U.S.C. sec. 230(f)(3); (5) "Interactive computer service" has the same meaning as in 47 U.S.C. sec. 230(f)(2); (6) "Internet" has the same meaning as in 47 U.S.C. sec. 230(f)(1); (7) "Matter" has the same meaning as in KRS 531.010; (8) "Matter harmful to minors" means: (a) Any matter that the average person, applying contemporary community standards, and taking the matter as a whole with respect to minors, would find is designed to appeal to, or pander to, the prurient interest; (b) Any matter that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors: 1. Pubic area, anus, vulva, genitals, or nipple of the female breast; 2. Touching, caressing, or fondling of buttocks, anuses, pubic areas, genitals, or nipples of the female breast; or 3. Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act; and (c) The matter taken as a whole lacks serious literary, artistic, political, or scientific value for minors; (9) "Minor" means any person under the age of eighteen (18) years; (10) "Publish" means to communicate or make information available to another person or entity on the internet; and (11) "Transactional data" means a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event, including but not limited to records from mortgage, utility, and education entities or other reliable document that establishes age. SECTION 14. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: (1) Any covered platform that knowingly and intentionally publishes or distributes material on the internet, more than one-third (1/3) of which is matter harmful to minors, and fails to perform age verification, either by itself or through a third party, of individuals attempting to access the matter shall be liable as provided in this section. (2) Any person injured by a violation of this section, or a parent or legal guardian on behalf of any minor injured by a violation of this section, may bring a civil action against the covered platform to recover: (a) Damages of ten thousand dollars ($10,000) per instance that the covered platform failed to perform age verification to restrict the minor's access to matter harmful to minors; and (b) Actual damages, court costs, and reasonable attorney's fees. (3) This section shall only apply to a minor who: (a) Is a permanent resident of this state; (b) Has resided in this state for more than one (1) year; or (c) Has been sojourning in this state for a period of at least thirty-one (31) consecutive days. SECTION 15. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: (1) Any covered platform or third party that performs the age verification required under Section 14 of this Act shall not retain any identifying information of the individual after access has been granted to the matter. CHAPTER 106 Legislative Research Commission PDF Version 11 (2) A covered platform or third party that is found to have knowingly retained identifying information of the individual after access has been granted to the matter shall be liable to the individual for: (a) Damages of one thousand dollars ($1,000) for each twenty-four (24) hour period that the information is retained; and (b) Actual damages, court costs, and reasonable attorney's fees. SECTION 16. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: (1) Any party filing a civil action under Section 14 or 15 of this Act shall: (a) Bring the action in: 1. The Circuit Court of the county where the alleged violation occurred; 2. The Circuit Court of the county in which the person bringing the action resides; or 3. Franklin Circuit Court; and (b) Have the right to a jury trial, and the jury shall decide both liability and damages. (2) An individual may bring an action under Section 14 or 15 of this Act regardless of whether another court has declared any provision of Sections 13 to 18 of this Act unconstitutional, unless that court decision is binding upon the court in which the action is brought. (3) Nonmutual issue preclusion and nonmutual claim preclusion shall not be defenses to an action brought under Section 14 or 15 of this Act. (4) Notwithstanding any other law: (a) The requirements of Sections 13 to 18 of this Act shall be enforced exclusively through private civil actions; and (b) Direct or indirect enforcement of Sections 13 to 18 of this Act shall not be taken or threatened by: 1. The Commonwealth of Kentucky; 2. A political subdivision of the Commonwealth; 3. The Attorney General; 4. A Commonwealth's attorney or county attorney; or 5. An executive or administrative officer or employee of the Commonwealth in his or her official capacity; against any person or entity, in any manner whatsoever. SECTION 17. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: (1) Nothing in Sections 13 to 18 of this Act shall be construed to impose liability on: (a) An internet service provider, or its affiliates or subsidiaries; (b) A general purpose search engine; or (c) A cloud service provider; when acting in its capacity as a provider of those services to the extent the provider is not responsible for the creation of the content of the communication that constitutes matter harmful to minors. (2) Nothing in Sections 13 to 18 of this Act shall be construed to limit or bar any cause of action or preclude the imposition of sanctions or penalties, including criminal penalties, that would otherwise be available under state or federal law. (3) Compliance with Sections 13 to 18 of this Act shall not excuse any person from any other legal duties or preclude any person from any other legal remedies. (4) Sections 13 to 18 of this Act shall not subject a covered platform to any cause of action or liability to the extent it is protected from causes of action or liability by federal law, including but not limited to 47 U.S.C. sec. 230. ACTS OF THE GENERAL ASSEMBLY 12 (5) The provisions of Sections 13 to 18 of this Act shall not apply in cases to the extent the provisions would violate the Commerce Clause of the Constitution of the United States. SECTION 18. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO READ AS FOLLOWS: (1) A waiver, purported waiver, or estoppel of a person's right to bring a civil action under Section 14 or 15 of this Act, or of any remedy or any other protection provided by Sections 13 to 18 of this Act, shall be void and unenforceable as against public policy, and a court or arbitrator shall not enforce or give effect to any waiver or estoppel, notwithstanding any choice-of-law or other provision in any contract or other agreement. (2) The waiver and estoppel prohibition under subsection (1) of this section: (a) Shall not apply to contractual waivers to the extent any application of the prohibition would impair the obligation of contract in violation of the Constitution of Kentucky or the Constitution of the United States; (b) Is a public policy limitation on contractual and other waivers or estoppels; and (c) Shall be enforced to the full extent permitted by the Constitution of Kentucky and the Constitution of the United States. (3) Any contract, agreement, or arrangement made or entered in violation of Sections 13 to 18 of this Act shall be void and unenforceable as against public policy. Section 19. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. Signed by Governor April 5, 2024.