PA 07-143—sSB 1458

Judiciary Committee

AN ACT CONCERNING JESSICA'S LAW AND CONSENSUAL SEXUAL ACTIVITY BETWEEN ADOLESCENTS CLOSE IN AGE TO EACH OTHER

SUMMARY: This act:

1. decriminalizes consensual sexual activity between children and teenagers close in age;

2. establishes a new crime of aggravated sexual assault of a minor;

3. enhances the penalty for enticing children under age 13;

4. imposes mandatory minimum terms of imprisonment for enticing a child under age 13, having sexual or indecent contact with a child under age 13, employing a minor in an obscene performance, and importing or possessing child pornography;

5. creates an exception to the hearsay rule for statements of victims of sexual or physical assault who are under age 13; and

6. permits courts to set the same conditions for special parole that they may already set for probation or conditional discharge and allows the Board of Pardons and Paroles to set conditions that are not inconsistent with those set by courts (PA 07-217 repeals this authority, see BACKGROUND).

EFFECTIVE DATE: July 1, 2007, except for the provisions on special parole and decriminalization of consensual sexual activity, which are effective on October 1, 2007.

CONSENSUAL SEXUAL ACTIVITY BETWEEN ADOLESCENTS CLOSE IN AGE

The act decriminalizes consensual sexual activity between teenagers close in age by increasing, from two to three years, the age difference between the two before the older teen is guilty of second-degree sexual assault (i. e. , statutory rape). Just as under existing law, the act applies when the younger teen is at least age 13 but under age 16.

The act also decriminalizes consensual sexual contact between children and teenagers close in age. Under prior law, anyone who had sexual contact with a person under age 15 was guilty of fourth-degree sexual assault. Under the act, the actor is guilty of this crime only if he or she is more than (1) two years older than a victim under age 13 or (2) three years older than a victim between ages 13 and 15.

AGGRAVATED SEXUAL ASSAULT OF A MINOR

Under the act, a person commits this crime when he or she commits certain crimes against a child under age 13 and:

1. kidnaps, illegally restrains, stalks, disfigures, causes serious injury to, or uses violence against the victim;

2. commits the same offense against more than one victim under age 13;

3. does not know the victim; or

4. has been previously convicted of a violent sexual assault.

The covered crimes are contact with the intimate parts of a child under age 13 in a sexual or indecent manner likely to impair the child's health or morals, 1st or 2nd degree sexual assault, 1st degree aggravated sexual assault, 1st or 2nd degree promoting prostitution, and employing a minor in an obscene performance.

Aggravated sexual assault of a minor is a class A felony (see Table on Penalties). For first offenders, the mandatory minimum prison term is 25 years. For subsequent offenders, it is 50 years.

ENHANCED PENALTIES

The act enhances penalties, including imposing mandatory minimum sentences for certain crimes against children. Table 1 shows the crimes, the existing penalties for violations, and the act's enhancements.

Offense

Existing Penalty

Additional Penalty Under the Act

Risk of Injury/Impairing Morals:

Sexual contact with intimate parts of a victim under age 13

CGS 53-21(a)(2)

B Felony

(see Table on Penalties)

Mandatory minimum term of 5 years

Employing Minor in Obscene Performance:

Actor employs minor to promote any material or performance that is obscene as to minors

CGS 53a-196a

A Felony

Mandatory minimum term of 10 years

Enticing a Minor:

Actor uses interactive computer service to knowingly persuade or entice victim under age 13 to engage in prostitution or other sexual activity which would subject the actor to criminal prosecution

CGS 53a-90a

D Felony

B Felony, punishable by 1-20 years in prison, a fine of up to $15,000, or both. The sentence includes a 5-year mandatory minimum sentence for a first offense and a 10-year mandatory minimum for each subsequent offense.

Importing Child Pornography:

Intentionally and knowingly imports or causes to be imported into this state three or more visual depictions of child pornography

CGS 53a-196c

B Felony

Mandatory minimum term of 5 years

1st Degree Possession of Child Pornography:

Actor knowingly possesses 50 or more visual depictions of child pornography

CGS 53a-196d

B Felony

Mandatory minimum term of 5 years

2nd Degree Possession of Child Pornography:

Actor knowingly possesses 20 to 49 visual depictions of child pornography

CGS 53a-196e

C Felony

Mandatory minimum term of 2 years

3rd Degree Possession of Child Pornography:

Actor knowingly possesses fewer than 20 visual depictions of child pornography

CGS 53a-196f

D Felony

Mandatory minimum term of 1 year

ADMISSIBILITY OF EVIDENCE

The act creates an exception to Connecticut's hearsay rule for statements of young children's statements about sexual or physical assault committed against them by someone with authority or apparent authority over them. It requires courts to accept these statements as evidence in criminal, juvenile, or civil proceedings under certain circumstances. PA 07-5, June Special Session, eliminates the requirement for courts to accept these statements in civil proceedings.

The statements may be accepted in criminal or juvenile proceedings if:

1. the court finds, in a hearing conducted outside of the presence of any jury, that the circumstances of the statement, including its timing and contents, provide particularized guarantees of its trustworthiness;

2. the statement was not made in preparation for a legal proceeding;

3. the proponent of the statement (a) tells the adverse party what the statement contains, including when, where, and to whom it was made and under what circumstances that indicate its trustworthiness; (b) tells the adverse party that he or she intends to offer it as evidence; and (c) gives the adverse party fair opportunity to counter it; and

4. the child (a) testifies and is subject to cross-examination at the proceeding or (b) is unavailable as a witness and (i) there is independent nontestimonial corroborative evidence of the alleged act and (ii) the statement was made before the defendant's arrest or institution of juvenile proceedings in connection with the act described in the statement.

The act does not (1) prevent the admission of any statement under another hearsay exception, (2) allow broader definitions in other hearsay exceptions for statements made by children under age 13 about sexual or physical assault by someone with authority or apparent authority over them than are allowed for other declarants, or (3) allow the admission pursuant to the residual hearsay exception.

SPECIAL PAROLE

By law, a court can suspend a portion of a prison sentence and order the defendant to spend it on probation or special parole (parole ordered by the court as part of the sentence). Anyone on special parole is subject to the rules and conditions of the Board of Pardons and Paroles.

The act permits a court that orders special parole to impose the same conditions that it may impose for probation or conditional discharge (see BACKGROUND). The court must have a copy of the order delivered to the defendant and the Department of Correction. The Board of Pardons and Paroles may require the person to comply with conditions that the court could have imposed; however, these conditions cannot be inconsistent with any the court imposed.

BACKGROUND

Hearsay Rule

Hearsay” is a statement made out of court that is offered in court to establish the truth of the facts contained in the statement ( 8-1, Ct. Evidence Code). The general rule is that hearsay is inadmissible in a court of law unless the evidence code, the General Statutes, or the Practice Book provide otherwise ( 8-2, Ct. Evidence Code). Previously, there was no so-called “tender age” exception to the hearsay rule.

PA 07-217

PA 07-217 repeals the authority under this act for (1) courts to order the same conditions on people sentenced to special parole that it imposes as conditions of probation or conditional discharge and (2) the Board of Pardons and Paroles to require the person to comply with conditions that the court could have imposed that are not inconsistent with any the court imposed. It also repeals a requirement for courts to have a copy of the order delivered to the defendant and the Department of Correction.

Instead, PA 07-217 (1) permits a court to recommend that people sentenced to special parole comply with any or all of the requirements imposed as conditions for probation or conditional discharge, (2) requires the court to have a copy of the recommendation delivered to the defendant and the Department of Correction, and (3) permits the Board of Pardons and Paroles to require the person to comply with the recommendations.

Conditions of Probation or Conditional Discharge

As a condition of probation or conditional discharge, a court may order a defendant to:

1. work faithfully at a suitable employment or faithfully pursue a course of study or vocational training that will equip him or her for suitable employment;

2. undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose;

3. support his or her dependents and meet other family obligations;

4. make restitution in an amount he or she can afford to pay, or provide in some other way, for the loss or damage caused;

5. refrain from violating any criminal law;

6. post a bond or other surety for performing any conditions;

7. reside in a residential community center or halfway house the parole board's chairperson approves and contribute to the cost of his or her residence;

8. participate in a program of community service;

9. if convicted of a violation of specified sexual assault offenses, undergo specialized sexual offender treatment and register as a sex offender;

10. be electronically monitored;

11. participate in anti-bias crime or animal cruelty prevention education programs if convicted on hate crimes or crimes against animals; or

12. satisfy any other conditions reasonably related to his rehabilitation.

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