FIRST REGULAR SESSION
HOUSE BILL NO. 563
91ST GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES MONACO, JOLLY, KENNEDY, BONNER,
GAMBARO (Co-sponsors), HOSMER, RIZZO AND JOHNSON (90).
Read 1st time January 25, 2001, and 1000 copies ordered printed.
TED WEDEL, Chief Clerk
AN ACT
To repeal sections 547.170, 556.036, 556.061, 559.125, 566.067, 566.068, 566.083, 566.090, 566.093, 566.140, 566.141, 632.480 and 650.055, RSMo 2000, relating to sexual crimes, and to enact in lieu thereof fifteen new sections relating to the same subject, with penalty provisions and an emergency clause for a certain section.
Section A. Sections 547.170, 556.036, 556.061, 559.125, 566.067, 566.068, 566.083, 566.090, 566.093, 566.140, 566.141, 632.480 and 650.055, RSMo 2000, are repealed and fifteen new sections enacted in lieu thereof, to be known as sections 491.707, 547.170, 556.036, 556.061, 559.125, 566.067, 566.068, 566.069, 566.083, 566.090, 566.093, 566.140, 566.141, 632.480 and 650.055, to read as follows:
491.707. In all prosecutions brought pursuant to chapter 566, RSMo, sections 565.050, 565.060 and 565.070, RSMo, sections 568.045, 568.050, 568.060, 568.080 and 568.090, RSMo, and sections 573.025 and 573.040, RSMo, the defendant may be physically excluded from the room in which any and all discovery deposition proceedings are conducted at which the child victim testifies. For purposes of this section, a "child victim" means any victim less than sixteen years of age.
547.170. In all cases where an appeal or writ of error is prosecuted from a judgment in a criminal cause, except where the defendant is under sentence of death or imprisonment in the penitentiary for life, [or] a sentence of imprisonment for a violation of sections 195.222, RSMo, 565.021, RSMo, 565.050, RSMo, [or] subsections 1 and 2 of section 566.030, RSMo, section 566.032 or 566.060, RSMo, any court or officer authorized to order a stay of proceedings under the preceding provisions may allow a writ of habeas corpus, to bring up the defendant, and may thereupon let [him] the defendant to bail upon a recognizance, with sufficient sureties, to be approved by such court or judge.
556.036. 1. A prosecution for murder, a prosecution pursuant to section 566.030 or 566.060, RSMo, or any class A felony may be commenced at any time.
2. Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation:
(1) For any felony, three years;
(2) For any misdemeanor, one year;
(3) For any infraction, six months.
3. If the period prescribed in subsection 2 has expired, a prosecution may nevertheless be commenced for:
(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense, but in no case shall this provision extend the period of limitation by more than three years. As used in this subdivision, the term "person who has a legal duty to represent an aggrieved party" shall mean the attorney general or the prosecuting or circuit attorney having jurisdiction pursuant to section 407.553, RSMo, for purposes of offenses committed pursuant to sections 407.511 to 407.556, RSMo; and
(2) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years; and
(3) Any offense based upon an intentional and willful fraudulent claim of child support arrearage to a public servant in the performance of his or her duties within one year after discovery of the offense, but in no case shall this provision extend the period of limitation by more than three years.
4. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.
5. A prosecution is commenced either when an indictment is found or an information filed.
6. The period of limitation does not run:
(1) During any time when the accused is absent from the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years; or
(2) During any time when the accused is concealing himself or herself from justice either within or without this state; or
(3) During any time when a prosecution against the accused for the offense is pending in this state; or
(4) During any time when the accused is found to lack mental fitness to proceed pursuant to section 552.020, RSMo.
556.061. In this code, unless the context requires a different definition, the following shall apply:
(1) "Affirmative defense" has the meaning specified in section 556.056;
(2) "Burden of injecting the issue" has the meaning specified in section 556.051;
(3) "Commercial film and photographic print processor", any person who develops exposed photographic film into negatives, slides or prints, or who makes prints from negatives or slides, for compensation. The term commercial film and photographic print processor shall include all employees of such persons but shall not include a person who develops film or makes prints for a public agency;
(4) "Confinement":
(a) A person is in confinement when such person is held in a place of confinement pursuant to arrest or order of a court, and remains in confinement until:
a. A court orders the person's release; or
b. The person is released on bail, bond, or recognizance, personal or otherwise; or
c. A public servant having the legal power and duty to confine the person authorizes [his] such person's release without guard and without condition that [he] such person return to confinement;
(b) A person is not in confinement if:
a. The person is on probation or parole, temporary or otherwise; or
b. The person is under sentence to serve a term of confinement which is not continuous, or is serving a sentence under a work-release program, and in either such case is not being held in a place of confinement or is not being held under guard by a person having the legal power and duty to transport the person to or from a place of confinement;
(5) "Consent": consent or lack of consent may be expressed or implied. Assent does not constitute consent if:
(a) It is given by a person who lacks the mental capacity to authorize the conduct charged to constitute the offense and such mental incapacity is manifest or known to the actor; or
(b) It is given by a person who by reason of youth, mental disease or defect, or intoxication, is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
(c) It is induced by force, duress or deception;
(6) "Criminal negligence" has the meaning specified in section 562.016, RSMo;
(7) "Custody", a person is in custody when the person has been arrested but has not been delivered to a place of confinement;
(8) "Dangerous felony" means the felonies of arson in the first degree, assault in the first degree, forcible rape, forcible sodomy, kidnapping, murder in the second degree [and], robbery in the first degree, statutory rape in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, statutory sodomy in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense and abuse of a child as set forth in subdivision (2) of subsection 3 of section 568.060, RSMo;
(9) "Dangerous instrument" means any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury;
(10) "Deadly weapon" means any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles;
(11) "Felony" has the meaning specified in section 556.016;
(12) "Forcible compulsion" means either:
(a) Physical force that overcomes reasonable resistance; or
(b) A threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person;
(13) "Incapacitated" means that physical or mental condition, temporary or permanent, in which a person is unconscious, unable to appraise the nature of such person's conduct, or unable to communicate unwillingness to an act. A person is not incapacitated with respect to an act committed upon such person if he or she became unconscious, unable to appraise the nature of such person's conduct or unable to communicate unwillingness to an act, after consenting to the act;
(14) "Infraction" has the meaning specified in section 556.021;
(15) "Inhabitable structure" has the meaning specified in section 569.010, RSMo;
(16) "Knowingly" has the meaning specified in section 562.016, RSMo;
(17) "Law enforcement officer" means any public servant having both the power and duty to make arrests for violations of the laws of this state, and federal law enforcement officers authorized to carry firearms and to make arrests for violations of the laws of the United States;
(18) "Misdemeanor" has the meaning specified in section 556.016;
(19) "Offense" means any felony, misdemeanor or infraction;
(20) "Physical injury" means physical pain, illness, or any impairment of physical condition;
(21) "Place of confinement" means any building or facility and the grounds thereof wherein a court is legally authorized to order that a person charged with or convicted of a crime be held;
(22) "Possess" or "possessed" means having actual or constructive possession of an object with knowledge of its presence. A person has actual possession if such person has the object on his or her person or within easy reach and convenient control. A person has constructive possession if such person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of an object, possession is sole. If two or more persons share possession of an object, possession is joint;
(23) "Public servant" means any person employed in any way by a government of this state who is compensated by the government by reason of such person's employment, any person appointed to a position with any government of this state, or any person elected to a position with any government of this state. It includes, but is not limited to, legislators, jurors, members of the judiciary and law enforcement officers. It does not include witnesses;
(24) "Purposely" has the meaning specified in section 562.016, RSMo;
(25) "Recklessly" has the meaning specified in section 562.016, RSMo;
(26) "Ritual" or "ceremony" means an act or series of acts performed by two or more persons as part of an established or prescribed pattern of activity;
(27) "Serious emotional injury", an injury that creates a substantial risk of temporary or permanent medical or psychological damage, manifested by impairment of a behavioral, cognitive or physical condition. Serious emotional injury shall be established by testimony of qualified experts upon the reasonable expectation of probable harm to a reasonable degree of medical or psychological certainty;
(28) "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body;
(29) "Sexual conduct" means acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification;
(30) "Sexual contact" means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person;
(31) "Sexual performance", any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen years of age;
(32) "Voluntary act" has the meaning specified in section 562.011, RSMo.
559.125. 1. The clerk of the court shall keep in a permanent file all applications for probation or parole by the court, and shall keep in such manner as may be prescribed by the court complete and full records of all presentence investigations requested, probations or paroles granted, revoked or terminated and all discharges from probations or paroles. All court orders relating to any presentence investigation requested and probation or parole granted under the provisions of this chapter and sections 558.011 and 558.026, RSMo, shall be kept in a like manner, and, if the defendant subject to any such order is subject to an investigation or is under the supervision of the state board of probation and parole, a copy of the order shall be sent to the board. In any county where a parole board ceases to exist, the clerk of the court shall preserve the records of that board.
2. Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports, except the court or the board may in its discretion permit the inspection of the report, or parts of such report, by the defendant, or offender or his or her attorney, or other person having a proper interest therein. However, notwithstanding any provision of law to the contrary, information or data received by a probation or parole officer from an individual who is on probation or parole as defined in section 217.650, RSMo, which relates to future contemplated crimes shall not be privileged information pursuant to this section and shall be receivable in any court with jurisdiction over such criminal acts. A probation or parole officer shall inform an individual who is on probation or parole, as defined in section 217.650, RSMo, that any information obtained by the probation or parole officer which relates to future contemplated crimes shall not be privileged information pursuant to this section.
3. The provisions of subsection 2 of this section notwithstanding, the presentence investigation report shall be made available to the state and all information and data obtained in connection with preparation of the presentence investigation report may be made available to the state at the discretion of the court upon a showing that the receipt of the information and data is in the best interest of the state.
566.067. 1. A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.
2. Child molestation in the first degree is a class B felony unless the actor has previously pleaded guilty to or has been convicted of an offense [under] pursuant to this chapter or has pleaded guilty to or been convicted of an offense in another state or jurisdiction which would have constituted an offense pursuant to this chapter if it had been committed in this state, or in the course thereof the actor inflicts serious physical injury, displays a deadly weapon or deadly instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony, in which case the crime is a class A felony.
566.068. 1. A person over twenty-one years of age commits the crime of child molestation in the second degree if he or she subjects another person who is less than [seventeen] sixteen years of age to sexual contact.
2. Child molestation in the second degree is a class [A misdemeanor] D felony unless the actor has previously pleaded guilty to or been convicted of an offense [under] pursuant to this chapter or has pleaded guilty to or been convicted of an offense in another state or jurisdiction which would have constituted an offense pursuant to this chapter if it had been committed in this state, or in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony, in which case the crime is a class [D] C felony.
566.069. 1. A person commits the crime of child molestation in the third degree if such person subjects another person who is less than thirteen years of age to conduct which would constitute sexual contact except that the touching occurs through clothing.
2. Child molestation in the third degree is a class D felony unless the actor has previously pleaded guilty to or been convicted of an offense pursuant to this chapter or had pleaded guilty to or been convicted of an offense in another state or jurisdiction which would have constituted an offense pursuant to this chapter if it had been committed in this state, or in the course thereof the actor inflicts serious physical injury, displays a deadly weapon or a dangerous instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony in which case the crime is a class C felony.
3. A person over twenty-one years of age commits the crime of child molestation in the fourth degree if such person subjects another person who is less than sixteen years of age to conduct which would constitute sexual contact except that the touching occurs through clothing.
4. Child molestation in the fourth degree is a class A misdemeanor unless the actor has previously pleaded guilty to or been convicted of an offense pursuant to this chapter or had pleaded guilty to or been convicted of an offense in another state or jurisdiction which would have constituted an offense pursuant to this chapter if it had been committed in this state, or in the course thereof the actor inflicts serious physical injury, displays a deadly weapon or a dangerous instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony in which case the crime is a class D felony.
566.083. 1. A person commits the crime of sexual misconduct involving a child if the person:
(1) Knowingly exposes the person's genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age;
(2) Knowingly exposes the person's genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child; or
(3) Coerces a child less than fourteen years of age to expose the child's genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child.
2. As used in this section, the term "sexual act" means any of the following, whether performed or engaged in either with any other person or alone: sexual or anal intercourse, masturbation, bestiality, sadism, masochism, fetishism, fellatio, cunnilingus, any other sexual activity or nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.
3. Violation of this section is a class D felony[; except that the] unless the actor has previously pleaded guilty to or been convicted of an offense pursuant to this chapter or the actor has previously pleaded guilty to or been convicted of an offense in another state or jurisdiction which would constitute an offense pursuant to this chapter if it had been committed in this state in which case it is a class C felony. A second or any subsequent violation of [this section is] this chapter makes this offense a class C felony.
566.090. 1. A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing without that person's consent.
2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously pleaded guilty to or been convicted of an offense [under] pursuant to this chapter or the actor has previously pleaded guilty to or been convicted of an offense against the laws of another state or jurisdiction which would constitute an offense pursuant to this chapter if it had been committed in this state, or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.
566.093. 1. A person commits the crime of sexual misconduct in the second degree if [he] such person:
(1) Exposes his or her genitals under circumstances in which [he] such person knows that his or her conduct is likely to cause affront or alarm; or
(2) Has sexual contact in the presence of a third person or persons under circumstances in which [he] such person knows that such conduct is likely to cause affront or alarm.
2. Sexual misconduct in the second degree is a class B misdemeanor unless the actor has previously pleaded guilty to or been convicted of an offense [under] pursuant to this chapter or has pleaded guilty to or been convicted of an offense in another state or jurisdiction which would constitute an offense pursuant to this chapter if it had been committed in this state, in which case it is a class A misdemeanor.
566.140. Any person who has pleaded guilty to or been found guilty of violating the provisions of this chapter, and is granted a suspended imposition or execution of sentence or placed under the supervision of the board of probation and parole shall be required to participate in and successfully complete a program of treatment, education and rehabilitation designed for perpetrators of sexual offenses. Any person participating in such a program shall follow all directives of the program treatment provider. Persons required to attend a program pursuant to this section may be charged a reasonable fee to cover the costs of such program.
566.141. Any person who is convicted of or pleads guilty or nolo contendere to any sexual offense involving a child shall be required as a condition of probation or parole to be involved in and successfully complete an appropriate treatment program.
632.480. As used in sections 632.480 to 632.513, the following terms mean:
(1) "Agency with jurisdiction", the department of corrections or the department of mental health;
(2) "Mental abnormality", a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others;
(3) "Predatory", acts directed towards strangers or individuals with whom relationships have been established or promoted [for the primary purpose of victimization];
(4) "Sexually violent offense", the felonies of forcible rape, rape, statutory rape in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first or second degree, sexual abuse, sexual assault, deviate sexual assault, or the act of abuse of a child as defined in subdivision (1) of subsection 1 of section 568.060, RSMo, which involves sexual contact, and as defined in subdivision (2) of subsection 1 of section 568.060, RSMo;
(5) "Sexually violent predator", any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980.
650.055. 1. Every individual convicted in a Missouri circuit court, of a felony, defined as a violent offense [under] pursuant to chapter 565, RSMo, or as a sex offense [under] pursuant to chapter 566, RSMo, excluding sections 566.010 and 566.020, RSMo, or pursuant to section 568.020, RSMo, subdivision (2) of subsection 1 of section 568.045, RSMo, subdivision (2) of subsection 1 of section 568.060, or section 568.080 or 568.090, RSMo, section 569.020, 569.025, 569.030, 569.160 or 569.170, RSMo, shall have a blood or scientifically accepted biological sample collected for purposes of DNA profiling analysis:
(1) Upon entering the department of correction's reception and diagnostic centers; or
(2) Before release from a county jail or detention facility; or
(3) If such individual is under the jurisdiction of the department of corrections on or after August 28, 1996. Such jurisdiction includes persons currently incarcerated, persons on probation, as defined in section 217.650, RSMo, and on parole, as also defined in section 217.650, RSMo.
2. The Missouri state highway patrol and department of corrections shall be responsible for ensuring adherence to the law. Any person required to provide a DNA sample pursuant to this section shall be required to provide such sample, without the right of refusal, at a collection site designated by the Missouri state highway patrol and the department of corrections. Authorized personnel collecting or assisting in the collection of samples shall not be liable in any civil or criminal action when the act is performed in a reasonable manner. Such force may be used as necessary to the effectual carrying out and application of such processes and operations. The enforcement of these provisions by the authorities in charge of state correctional institutions and others having custody of those convicted of the felony which shall not be set aside or reversed, is hereby made mandatory.
3. The procedure and rules for the collection, analysis, storage, expungement, use of DNA database records and privacy concerns shall not conflict with procedures and rules applicable to the Missouri DNA profiling system and the Federal Bureau of Investigation's DNA data bank system.
4. Unauthorized uses or dissemination of individually identifiable DNA information in a database for purposes other than criminal justice or law enforcement is a class A misdemeanor.
5. Implementation of section 650.050 and this section shall be subject to future appropriations to keep Missouri's DNA system compatible with the Federal Bureau of Investigation's DNA data bank system.
Section B. Because immediate action is necessary to ensure the prosecution of serious crimes in this state section 556.036
of section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety,
and is hereby declared to be an emergency act within the meaning of the constitution, and section 556.036 of section A of
this act shall be in full force and effect upon its passage and approval.
Missouri House of Representatives