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2003 SESSION

03-0033

04/10

HOUSE BILL 105

COMMITTEE: Criminal Justice and Public Safety

AMENDED ANALYSIS

This bill:

I. Prohibits sexual conduct between any person, including juvenile probation and parole officers, in a supervisory or disciplinary capacity and any person being held at the Secure Psychiatric Unit at the state prison in Concord.

II. Eliminates consent as a defense to aggravated felonious sexual assault and felonious sexual assault.

III. Allows the court to prohibit visitation between a parent convicted of sexual abuse or sexual assault against a minor child or minor stepchild and any sibling of the victim.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05/29/03 1784s

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03-0033

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Be it Enacted by the Senate and House of Representatives in General Court convened:

226:1 Aggravated Felonious Sexual Assault; Gender Neutral Language Added. Amend the introductory paragraph of RSA 632-A:2, I to read as follows:

I. A person is guilty of the felony of aggravated felonious sexual assault if [he] such person engages in sexual penetration with another person under any of the following circumstances:

226:2 Aggravated Felonious Sexual Assault; Section Amended. Amend RSA 632-A:2, I(n) to read as follows:

(n) When the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit under any of the following circumstances:

(1) When the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed; or

(2) When the actor is a probation or parole officer or a juvenile probation and parole officer who has direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation.

Consent of the victim under any of the [above] circumstances set forth in subparagraph (n) shall not be considered a defense.

226:3 Felonious Sexual Assault; Gender Neutral. Amend the introductory paragraph of RSA 632-A:3 to read as follows:

A person is guilty of a class B felony if [he] such person:

226:4 Felonious Sexual Assault; Disciplinary Authority. Amend RSA 632-A:3, IV to read as follows:

IV. Engages in sexual contact with the person when the actor is in a position of authority over the person and uses that authority to coerce the victim to submit under any of the following circumstances:

(a) When the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed; or

(b) When the actor is a probation or parole officer or a juvenile probation and parole officer who has direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation.

Consent of the victim under any of the circumstances set forth in paragraph IV shall not be considered a defense.

226:5 Sexual Assault. RSA 632-A:4 is repealed and reenacted to read as follows:

632-A:4 Sexual Assault. A person is guilty of a misdemeanor if such person:

I. Subjects another person who is 13 years of age or older to sexual contact under any of the circumstances named in RSA 632-A:2; or

II. Engages in sexual contact or sexual penetration with another person when the actor is in a position of authority over the person under any of the following circumstances:

(a) When the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed; or

(b) When the actor is a probation or parole officer or a juvenile probation and parole officer who has direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation.

Consent of the victim under any of the circumstances set forth in paragraph II shall not be considered a defense.

226:6 Technical Correction to 2003, SB 39; Off Highway Recreational Vehicles; Preliminary Breath Tests. Amend RSA 215-A:11-i, I to read as follows:

I. Any law enforcement officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving or operating an OHRV while under the influence of intoxicating liquor or controlled drug, or while the person's alcohol concentration was 0.08 or more, or in the case of a person under the age of 21, 0.02 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this chapter, except for the purpose of determining whether the officer had probable [course] cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 215-A:11 was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 215-A:11-a. The law enforcement officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 215-A:11-a. The results of the test shall be furnished immediately to the person tested by the law enforcement officer administering the test and in writing, if requested.

226:7 Contingency. If HB 278-FN of the 2003 regular legislative session becomes law, section 9 of this act shall take effect January 1, 2004 at 12:01 a.m. If HB 278-FN of the 2003 regular legislative session does not become law, section 9 of this act shall not take effect.

226:8 New Paragraph; Support and Custody of Children. Amend RSA 458:17 by inserting after paragraph IV the following new paragraph:

IV-a. Where the court finds that a parent seeking visitation has been convicted of sexual abuse or sexual assault against such parent's minor child or minor stepchild, the court may prohibit visitation between such parent and any sibling or step-sibling of the victim. The court shall make visitation orders that best protect the victim of the abuse and the siblings and step-siblings of such victim. In this paragraph, "sexual abuse" shall mean sexual abuse as defined in RSA 169-C:3, XXVII-a, and "sexual assault" shall mean sexual assault as provided in RSA 632-A:2, RSA 632-A:3, and RSA 632-A:4.

226:9 Sexual Assault and Related Offenses; Sexual Assault. RSA 632-A:4 is repealed and reenacted to read as follows:

632-A:4 Sexual Assault.

I. A person is guilty of a class A misdemeanor under any of the following circumstances:

(a) When the actor subjects another person who is 13 years of age or older to sexual contact under any of the circumstances named in RSA 632-A:2.

(b) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.

II. A person found guilty under subparagraph I(b) of this section shall not be required to register as a sexual offender under RSA 651-B.

III. A person is guilty of a misdemeanor if such person engages in sexual contact or sexual penetration with another person when the actor is in a position of authority over the person under any of the following circumstances:

(a) When the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed; or

(b) When the actor is a probation or parole officer or a juvenile probation and parole officer who has direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation.

Consent of the victim under any of the circumstances set forth in paragraph III shall not be considered a defense.

226:10 Effective Date.

I. Section 9 of this act shall take effect as provided in section 7 of this act.

II. Sections 7 and 8 of this act shall take effect upon its passage.

III. Section 6 of this act shall take effect January 1, 2004 at 12:01 a.m.

IV. The remainder of this act shall take effect January 1, 2004.

(Approved: July 7, 2003)

(Effective Date: I. Section 9 shall take effect as provided in section 7.