SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES COX (Sponsor), ONDER, FISHER, ERVIN, SCHAAF, DAVIS, BROWN (30), RUESTMAN, FUNDERBURK, SANDER, BIVINS AND WELLS (Co-sponsors).
Pre-filed December 11, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 566.020, 566.025, 566.032, 566.034, 566.062, 566.064, 566.067, 566.068, 566.100, 566.151, 568.045, 568.065, 568.080, 568.090, 568.100, 573.010, and 573.090, RSMo, and to enact in lieu thereof seventeen new sections relating to the age of victims and perpetrators in certain criminal statutes, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 566.020, 566.025, 566.032, 566.034, 566.062, 566.064, 566.067, 566.068, 566.100, 566.151, 568.045, 568.065, 568.080, 568.090, 568.100, 573.010, and 573.090, RSMo, are repealed and seventeen new sections enacted in lieu thereof, to be known as sections 566.020, 566.025, 566.032, 566.034, 566.062, 566.064, 566.067, 566.068, 566.100, 566.151, 568.045, 568.065, 568.080, 568.090, 568.100, 573.010, and 573.090, to read as follows:
566.020. 1. Whenever in this chapter the criminality of conduct depends upon a victim's being incapacitated, no crime is committed if the actor reasonably believed that the victim was not incapacitated and reasonably believed that the victim consented to the act. The defendant shall have the burden of injecting the issue of belief as to capacity and consent.
2. Whenever in this chapter the criminality of conduct depends upon a child being [thirteen] fifteen years of age or younger, it is no defense that the defendant believed the child to be older.
3. Whenever in this chapter the criminality of conduct depends upon a child being under [seventeen] eighteen years of age, it is an affirmative defense that the defendant reasonably believed that the child was [seventeen] eighteen years of age or older.
4. Consent is not an affirmative defense to any offense under chapter 566 if the alleged victim is less than twelve years of age.
566.025. In prosecutions pursuant to this chapter or chapter 568, RSMo, of a sexual nature involving a victim under [fourteen] eighteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes of a sexual nature involving victims under [fourteen] eighteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect.
566.032. 1. A person commits the crime of statutory rape in the first degree if he or she being eighteen years of age or older has sexual intercourse with another person who is less than [fourteen] sixteen years old.
2. Statutory rape in the first degree or an attempt to commit statutory rape in the first degree is a felony for which the authorized term of imprisonment is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner, subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person, or the victim is less than twelve years of age in which case the authorized term of imprisonment is life imprisonment or a term of years not less than ten years.
566.034. 1. A person commits the crime of statutory rape in the second degree if being [twenty-one years of age or older] under the age of eighteen, he or she has sexual intercourse with another person who is less than seventeen years of age and there is more than twenty-four months difference in age.
2. Statutory rape in the second degree is a class C felony.
566.062. 1. A person commits the crime of statutory sodomy in the first degree if he or she being eighteen years of age or older has deviate sexual intercourse with another person who is less than [fourteen] sixteen years old.
2. Statutory sodomy in the first degree or an attempt to commit statutory sodomy in the first degree is a felony for which the authorized term of imprisonment is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner, subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person, or the victim is less than twelve years of age, in which case the authorized term of imprisonment is life imprisonment or a term of years not less than ten years.
566.064. 1. A person commits the crime of statutory sodomy in the second degree if being [twenty-one years of age or older] under the age of eighteen, he or she has deviate sexual intercourse with another person who is less than seventeen years of age and there is more than twenty-four months difference in age.
2. Statutory sodomy in the second degree is a class C felony.
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] sixteen years of age to sexual contact and the victim is at least twenty-four months younger than he or she.
2. Child molestation in the first degree is a class B felony unless:
(1) The actor has previously been convicted of an offense under this chapter 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; or
(2) The victim is a child less than twelve years of age and:
(a) The actor has previously been convicted of an offense under this chapter; or
(b) In the course thereof the actor inflicts serious physical injury, displays a deadly weapon or deadly instrument in a threatening manner, or if the offense is committed as part of a ritual or ceremony, in which case, the crime is a class A felony and such person shall serve his or her term of imprisonment without eligibility for probation or parole.
566.068. 1. A person commits the crime of child molestation in the second degree if he or she subjects another person who is less than [seventeen] eighteen years of age to sexual contact.
2. Child molestation in the second degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter 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 felony.
566.100. 1. A person commits the crime of sexual abuse if he or she subjects another person to sexual contact by the use of forcible compulsion.
2. Sexual abuse is a class C felony unless in the course thereof the actor inflicts serious physical injury or displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to sexual contact with more than one person or the victim is less than [fourteen] sixteen years of age, in which case the crime is a class B felony.
566.151. 1. A person at least [twenty-one] eighteen years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than [fifteen] seventeen years of age for the purpose of engaging in sexual conduct.
2. It is not an affirmative defense to a prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.
3. Enticement of a child or an attempt to commit enticement of a child is a felony for which the authorized term of imprisonment shall be not less than five years and not more than thirty years. No person convicted under this section shall be eligible for parole, probation, conditional release, or suspended imposition or execution of sentence for a period of five calendar years.
568.045. 1. A person commits the crime of endangering the welfare of a child in the first degree if:
(1) The person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old; or
(2) The person knowingly engages in sexual conduct with a person under the age of [seventeen] eighteen years over whom the person is a parent, guardian, or otherwise charged with the care and custody;
(3) The person knowingly encourages, aids or causes a child less than [seventeen] eighteen years of age to engage in any conduct which violates the provisions of chapter 195, RSMo;
(4) Such person enlists the aid, either through payment or coercion, of a person less than seventeen years of age to unlawfully manufacture, compound, produce, prepare, sell, transport, test or analyze amphetamine or methamphetamine or any of their analogues, or to obtain any material used to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues; or
(5) Such person, in the presence of a person less than seventeen years of age or in a residence where a person less than seventeen years of age resides, unlawfully manufactures, or attempts to manufacture compounds, produces, prepares, sells, transports, tests or analyzes amphetamine or methamphetamine or any of their analogues.
2. Endangering the welfare of a child in the first degree is a class C felony unless the offense is committed as part of a ritual or ceremony, or except on a second or subsequent offense, in which case the crime is a class B felony.
568.065. 1. A person commits the crime of genital mutilation if such person:
(1) Excises or infibulates, in whole or in part, the labia majora, labia minora, vulva or clitoris of a female child less than [seventeen] eighteen years of age; or
(2) Is a parent, guardian or other person legally responsible for a female child less than [seventeen] eighteen years of age and permits the excision or infibulation, in whole or in part, of the labia majora, labia minora, vulva or clitoris of such female child.
2. Genital mutilation is a class B felony.
3. Belief that the conduct described in subsection 1 of this section is required as a matter of custom, ritual or standard practice, or consent to the conduct by the child on whom it is performed or by the child's parent or legal guardian, shall not be an affirmative defense to a charge pursuant to this section.
4. It is an affirmative defense that the defendant engaged in the conduct charged which constitutes genital mutilation if the conduct was:
(1) Necessary to preserve the health of the child on whom it is performed and is performed by a person licensed to practice medicine in this state; or
(2) Performed on a child who is in labor or who has just given birth and is performed for medical purposes connected with such labor or birth by a person licensed to practice medicine in this state.
568.080. 1. A person commits the crime of use of a child in a sexual performance if, knowing the character and content thereof, the person employs, authorizes, or induces a child less than [seventeen] eighteen years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in such sexual performance.
2. Use of a child in a sexual performance is a class C felony, unless in the course thereof the person inflicts serious emotional injury on the child, in which case the crime is a class B felony.
568.090. 1. A person commits the crime of promoting a sexual performance if, knowing the character and content thereof, the person promotes a sexual performance by a child less than [seventeen] eighteen years of age or produces, directs, or promotes any performance which includes sexual conduct by a child less than [seventeen] eighteen years of age.
2. Promoting a sexual performance is a class C felony.
568.100. 1. When it becomes necessary for the purposes of section 568.060, 568.080 or 568.090 to determine whether a child who participated in a sexual performance was younger than [seventeen] eighteen years of age, the court or jury may make this determination by any of the following methods:
(1) Personal inspection of the child;
(2) Inspection of the photograph or motion picture that shows the child engaging in the sexual performance;
(3) Oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time;
(4) Expert medical testimony based on the appearance of the child engaging in the sexual performance; or
(5) Any other method authorized by law or by the rules of evidence.
2. When it becomes necessary for the purposes of section 568.060, 568.080 or 568.090 to determine whether a child who participated in the sexual conduct consented to the conduct, the term "consent" shall have the meaning given it in section 556.061, RSMo.
3. Upon request of the prosecuting attorney, the court may order that the child's testimony be videotaped pursuant to section 492.303, RSMo, or as otherwise provided by law.
573.010. As used in this chapter the following terms shall mean:
(1) "Child", any person under the age of [fourteen] eighteen;
(2) "Child pornography":
(a) Any obscene material or performance depicting sexual conduct, sexual contact, or a sexual performance, as these terms are defined in section 556.061, RSMo, and which has as one of its participants or portrays as an observer of such conduct, contact, or performance a minor under the age of eighteen; or
(b) Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where:
a. The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
b. Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
c. Such visual depiction has been created, adapted, or modified to show that an identifiable minor is engaging in sexually explicit conduct;
(3) "Displays publicly", exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway or public sidewalk, or from the property of others or from any portion of the person's store, or the exhibitor's store or property when items and material other than this material are offered for sale or rent to the public;
(4) "Explicit sexual material", any pictorial or three-dimensional material depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation or unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of postpubertal human genitals; provided, however, that works of art or of anthropological significance shall not be deemed to be within the foregoing definition;
(5) "Furnish", to issue, sell, give, provide, lend, mail, deliver, transfer, circulate, disseminate, present, exhibit or otherwise provide;
(6) "Graphic", when used with respect to a depiction of sexually explicit conduct, that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted;
(7) "Identifiable minor":
(a) A person:
a. (i) Who was a minor at the time the visual depiction was created, adapted, or modified; or
(ii) Whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
b. Who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and
(b) The term shall not be construed to require proof of the actual identity of the identifiable minor;
(8) "Indistinguishable", when used with respect to a depiction, virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. Indistinguishable does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults;
(9) "Material", anything printed or written, or any picture, drawing, photograph, motion picture film, videotape or videotape production, or pictorial representation, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or stored computer data, or anything which is or may be used as a means of communication. Material includes undeveloped photographs, molds, printing plates, stored computer data and other latent representational objects;
(10) "Minor", any person under the age of eighteen;
(11) "Nudity", the showing of postpubertal human genitals or pubic area, with less than a fully opaque covering;
(12) "Obscene", any material or performance is obscene if, taken as a whole:
(a) Applying contemporary community standards, its predominant appeal is to prurient interest in sex; and
(b) The average person, applying contemporary community standards, would find the material depicts or describes sexual conduct in a patently offensive way; and
(c) A reasonable person would find the material lacks serious literary, artistic, political or scientific value;
(13) "Performance", any play, motion picture film, videotape, dance or exhibition performed before an audience of one or more;
(14) "Pornographic for minors", any material or performance is pornographic for minors if the following apply:
(a) The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, has a tendency to cater or appeal to a prurient interest of minors; and
(b) The material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors; and
(c) The material or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors;
(15) "Promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same, by any means including a computer;
(16) "Sadomasochistic abuse", flagellation or torture by or upon a person as an act of sexual stimulation or gratification;
(17) "Sexual conduct", actual or simulated, normal or perverted 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 or any sadomasochistic abuse or acts including animals or any latent objects in an act of apparent sexual stimulation or gratification;
(18) "Sexually explicit conduct", actual or simulated:
(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(b) Bestiality;
(c) Masturbation;
(d) Sadistic or masochistic abuse; or
(e) Lascivious exhibition of the genitals or pubic area of any person;
(19) "Sexual excitement", the condition of human male or female genitals when in a state of sexual stimulation or arousal;
(20) "Visual depiction", includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image;
(21) "Wholesale promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purposes of resale or redistribution.
573.090. 1. Video cassettes or other video reproduction devices, or the jackets, cases or coverings of such video reproduction devices shall be displayed or maintained in a separate area if the same are pornographic for minors as defined in section 573.010, or if:
(1) Taken as a whole and applying contemporary community standards, the average person would find that it has a tendency to cater or appeal to morbid interest in violence for persons under the age of [seventeen] eighteen; and
(2) It depicts violence in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for persons under the age of [seventeen] eighteen; and
(3) Taken as a whole, it lacks serious literary, artistic, political, or scientific value for persons under the age of seventeen.
2. Any video cassettes or other video reproduction devices meeting the description in subsection 1 of this section shall not be rented or sold to a person under the age of [seventeen] eighteen years.
3. Any violation of the provisions of subsection 1 or 2 of this section shall be punishable as an infraction, unless such violation constitutes furnishing pornographic materials to minors as defined in section 573.040, in which case it shall be punishable as a class A misdemeanor or class D felony as prescribed in section 573.040, or unless such violation constitutes promoting obscenity in the second degree as defined in section 573.030, in which case it shall be punishable as a class A misdemeanor or class D felony as prescribed in section 573.030.
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