HF 3863

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to crimes; making it criminal sexual conduct in the third or fourth degree
when certain nonconsensual sexual conduct involving cosmetic services occurs;
amending Minnesota Statutes 2004, sections 595.02, subdivision 1; 609.341,
subdivision 7, by adding a subdivision; 609.344, subdivision 1; 609.345,
subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 595.02, subdivision 1, is amended to read:

Subdivision 1.

Competency of witnesses.

Every person of sufficient understanding,
including a party, may testify in any action or proceeding, civil or criminal, in court or
before any person who has authority to receive evidence, except as provided in this
subdivision:

(a) A husband cannot be examined for or against his wife without her consent, nor a
wife for or against her husband without his consent, nor can either, during the marriage or
afterwards, without the consent of the other, be examined as to any communication made
by one to the other during the marriage. This exception does not apply to a civil action or
proceeding by one against the other, nor to a criminal action or proceeding for a crime
committed by one against the other or against a child of either or against a child under the
care of either spouse, nor to a criminal action or proceeding in which one is charged with
homicide or an attempt to commit homicide and the date of the marriage of the defendant
is subsequent to the date of the offense, nor to an action or proceeding for nonsupport,
neglect, dependency, or termination of parental rights.

(b) An attorney cannot, without the consent of the attorney's client, be examined as
to any communication made by the client to the attorney or the attorney's advice given
thereon in the course of professional duty; nor can any employee of the attorney be
examined as to the communication or advice, without the client's consent.

(c) A member of the clergy or other minister of any religion shall not, without the
consent of the party making the confession, be allowed to disclose a confession made to
the member of the clergy or other minister in a professional character, in the course of
discipline enjoined by the rules or practice of the religious body to which the member of
the clergy or other minister belongs; nor shall a member of the clergy or other minister
of any religion be examined as to any communication made to the member of the clergy
or other minister by any person seeking religious or spiritual advice, aid, or comfort
or advice given thereon in the course of the member of the clergy's or other minister's
professional character, without the consent of the person.

(d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the
consent of the patient, be allowed to disclose any information or any opinion based thereon
which the professional acquired in attending the patient in a professional capacity, and
which was necessary to enable the professional to act in that capacity; after the decease
of the patient, in an action to recover insurance benefits, where the insurance has been
in existence two years or more, the beneficiaries shall be deemed to be the personal
representatives of the deceased person for the purpose of waiving this privilege, and no
oral or written waiver of the privilege shall have any binding force or effect except when
made upon the trial or examination where the evidence is offered or received.

(e) A public officer shall not be allowed to disclose communications made to the
officer in official confidence when the public interest would suffer by the disclosure.

(f) Persons of unsound mind and persons intoxicated at the time of their production
for examination are not competent witnesses if they lack capacity to remember or to relate
truthfully facts respecting which they are examined.

(g) A registered nurse, psychologist, consulting psychologist, or licensed social
worker engaged in a psychological or social assessment or treatment of an individual at
the individual's request shall not, without the consent of the professional's client, be
allowed to disclose any information or opinion based thereon which the professional has
acquired in attending the client in a professional capacity, and which was necessary to
enable the professional to act in that capacity. Nothing in this clause exempts licensed
social workers from compliance with the provisions of sections 626.556 and 626.557.

(h) An interpreter for a person handicapped in communication shall not, without the
consent of the person, be allowed to disclose any communication if the communication
would, if the interpreter were not present, be privileged. For purposes of this section, a
"person handicapped in communication" means a person who, because of a hearing, speech
or other communication disorder, or because of the inability to speak or comprehend the
English language, is unable to understand the proceedings in which the person is required
to participate. The presence of an interpreter as an aid to communication does not destroy
an otherwise existing privilege.

(i) Licensed chemical dependency counselors shall not disclose information or
an opinion based on the information which they acquire from persons consulting them
in their professional capacities, and which was necessary to enable them to act in that
capacity, except that they may do so:

(1) when informed consent has been obtained in writing, except in those
circumstances in which not to do so would violate the law or would result in clear and
imminent danger to the client or others;

(2) when the communications reveal the contemplation or ongoing commission
of a crime; or

(3) when the consulting person waives the privilege by bringing suit or filing charges
against the licensed professional whom that person consulted.

(j) A parent or the parent's minor child may not be examined as to any
communication made in confidence by the minor to the minor's parent. A communication
is confidential if made out of the presence of persons not members of the child's
immediate family living in the same household. This exception may be waived by express
consent to disclosure by a parent entitled to claim the privilege or by the child who
made the communication or by failure of the child or parent to object when the contents
of a communication are demanded. This exception does not apply to a civil action or
proceeding by one spouse against the other or by a parent or child against the other, nor to
a proceeding to commit either the child or parent to whom the communication was made or
to place the person or property or either under the control of another because of an alleged
mental or physical condition, nor to a criminal action or proceeding in which the parent
is charged with a crime committed against the person or property of the communicating
child, the parent's spouse, or a child of either the parent or the parent's spouse, or in which
a child is charged with a crime or act of delinquency committed against the person or
property of a parent or a child of a parent, nor to an action or proceeding for termination of
parental rights, nor any other action or proceeding on a petition alleging child abuse, child
neglect, abandonment or nonsupport by a parent.

(k) Sexual assault counselors may not be deleted text begin compelled to testify about deleted text end new text begin allowed to
disclose new text end any opinion or information received from or about the victim without the consent
of the victim. However, a counselor may be compelled to identify or disclose information
in investigations or proceedings related to neglect or termination of parental rights if the
court determines good cause exists. In determining whether to compel disclosure, the
court shall weigh the public interest and need for disclosure against the effect on the
victim, the treatment relationship, and the treatment services if disclosure occurs. Nothing
in this clause exempts sexual assault counselors from compliance with the provisions
of sections 626.556 and 626.557.

"Sexual assault counselor" for the purpose of this section means a person who has
undergone at least 40 hours of crisis counseling training and works under the direction
of a supervisor in a crisis center, whose primary purpose is to render advice, counseling,
or assistance to victims of sexual assault.

(l) A person cannot be examined as to any communication or document, including
worknotes, made or used in the course of or because of mediation pursuant to an
agreement to mediate. This does not apply to the parties in the dispute in an application
to a court by a party to have a mediated settlement agreement set aside or reformed.
A communication or document otherwise not privileged does not become privileged
because of this paragraph. This paragraph is not intended to limit the privilege accorded
to communication during mediation by the common law.

(m) A child under ten years of age is a competent witness unless the court finds that
the child lacks the capacity to remember or to relate truthfully facts respecting which the
child is examined. A child describing any act or event may use language appropriate for
a child of that age.

(n) A communication assistant for a telecommunications relay system for
communication-impaired persons shall not, without the consent of the person making the
communication, be allowed to disclose communications made to the communication
assistant for the purpose of relaying.

Sec. 2.

Minnesota Statutes 2004, section 609.341, subdivision 7, is amended to read:

Subd. 7.

Mentally incapacitated.

"Mentally incapacitated" means that a person
new text begin 18 years old or older new text end under the influence of alcohol, a narcotic, anesthetic, or any
other substance, administered to that person without the person's agreement, lacks the
judgment to give a reasoned consent to sexual contact or sexual penetration. new text begin "Mentally
incapacitated" means that a person 17 years of age or younger under the influence of
alcohol, a narcotic, an anesthetic, or any other substance lacks the judgment to give a
reasoned consent to sexual contact or sexual penetration.
new text end

Sec. 3.

Minnesota Statutes 2004, section 609.341, is amended by adding a subdivision
to read:

new text begin Subd. 23. new text end

new text begin Personal body or cosmetic services. new text end

new text begin Personal body or cosmetic services
means services for hire including but not limited to massage, bodywork, acupuncture,
esthetician services, body piercing, or tattooing.
new text end

Sec. 4.

Minnesota Statutes 2004, section 609.344, subdivision 1, is amended to read:

Subdivision 1.

Crime defined.

A person who engages in sexual penetration with
another person is guilty of criminal sexual conduct in the third degree if any of the
following circumstances exists:

(a) the complainant is under 13 years of age and the actor is no more than 36 months
older than the complainant. Neither mistake as to the complainant's age nor consent to the
act by the complainant shall be a defense;

(b) the complainant is at least 13 but less than 16 years of age and the actor is more
than 24 months older than the complainant. deleted text begin In any such case deleted text end new text begin If the actor is no more
than 180 months older than the complainant, new text end it shall be an affirmative defense, which
must be proved by a preponderance of the evidence, that the actor new text begin reasonably new text end believes
the complainant to be 16 years of age or older. new text begin In all other cases, mistake as to the
complainant's age shall not be a defense. new text end If the actor deleted text begin in such a case deleted text end is no more than 48
months but more than 24 months older than the complainant, the actor may be sentenced
to imprisonment for not more than five years. Consent by the complainant is not a defense;

(c) the actor uses force or coercion to accomplish the penetration;

(d) the actor knows or has reason to know that the complainant is mentally impaired,
mentally incapacitated, or physically helpless;

(e) the complainant is at least 16 but less than 18 years of age and the actor is
more than 48 months older than the complainant and in a position of authority over the
complainant. Neither mistake as to the complainant's age nor consent to the act by the
complainant is a defense;

(f) the actor has a significant relationship to the complainant and the complainant
was at least 16 but under 18 years of age at the time of the sexual penetration. Neither
mistake as to the complainant's age nor consent to the act by the complainant is a defense;

(g) the actor has a significant relationship to the complainant, the complainant was at
least 16 but under 18 years of age at the time of the sexual penetration, and:

(i) the actor or an accomplice used force or coercion to accomplish the penetration;

(ii) the complainant suffered personal injury; or

(iii) the sexual abuse involved multiple acts committed over an extended period of
time.

Neither mistake as to the complainant's age nor consent to the act by the complainant
is a defense;

(h) the actor is a psychotherapist and the complainant is a patient of the
psychotherapist and the sexual penetration occurred:

(i) during the psychotherapy session; or

(ii) outside the psychotherapy session if an ongoing psychotherapist-patient
relationship exists.

Consent by the complainant is not a defense;

(i) the actor is a psychotherapist and the complainant is a former patient of the
psychotherapist and the former patient is emotionally dependent upon the psychotherapist;

(j) the actor is a psychotherapist and the complainant is a patient or former patient
and the sexual penetration occurred by means of therapeutic deception. Consent by the
complainant is not a defense;

(k) the actor accomplishes the sexual penetration by means of deception or false
representation that the penetration is for a bona fide medical purpose. Consent by the
complainant is not a defense;

(1) the actor is or purports to be a member of the clergy, the complainant is not
married to the actor, and:

(i) the sexual penetration occurred during the course of a meeting in which the
complainant sought or received religious or spiritual advice, aid, or comfort from the
actor in private; or

(ii) the sexual penetration occurred during a period of time in which the complainant
was meeting on an ongoing basis with the actor to seek or receive religious or spiritual
advice, aid, or comfort in private. Consent by the complainant is not a defense;

(m) the actor is an employee, independent contractor, or volunteer of a state, county,
city, or privately operated adult or juvenile correctional system, including, but not limited
to, jails, prisons, detention centers, or work release facilities, and the complainant is
a resident of a facility or under supervision of the correctional system. Consent by the
complainant is not a defense; deleted text begin or
deleted text end

(n) the actor provides or is an agent of an entity that provides special transportation
service, the complainant used the special transportation service, and the sexual penetration
occurred during or immediately before or after the actor transported the complainant.
Consent by the complainant is not a defense deleted text begin . deleted text end new text begin ; or
new text end

new text begin (o) the actor performs or is an agent of an entity that performs personal body or
cosmetic services, the complainant was a user of one of those services, and nonconsensual
sexual penetration occurred during or immediately before or after the actor performed one
of those services for complainant.
new text end

Sec. 5.

Minnesota Statutes 2004, section 609.345, subdivision 1, is amended to read:

Subdivision 1.

Crime defined.

A person who engages in sexual contact with
another person is guilty of criminal sexual conduct in the fourth degree if any of the
following circumstances exists:

(a) the complainant is under 13 years of age and the actor is no more than 36 months
older than the complainant. Neither mistake as to the complainant's age or consent to the
act by the complainant is a defense. In a prosecution under this clause, the state is not
required to prove that the sexual contact was coerced;

(b) the complainant is at least 13 but less than 16 years of age and the actor is
more than 48 months older than the complainant or in a position of authority over
the complainant. Consent by the complainant to the act is not a defense. deleted text begin In any such
case, deleted text end new text begin If the actor is no more than 180 months older than the complainant, new text end it shall be an
affirmative defense which must be proved by a preponderance of the evidence that the
actor new text begin reasonably new text end believes the complainant to be 16 years of age or older new text begin . In all other cases,
mistake as to the complainant's age shall not be a defense new text end ;

(c) the actor uses force or coercion to accomplish the sexual contact;

(d) the actor knows or has reason to know that the complainant is mentally impaired,
mentally incapacitated, or physically helpless;

(e) the complainant is at least 16 but less than 18 years of age and the actor is
more than 48 months older than the complainant and in a position of authority over the
complainant. Neither mistake as to the complainant's age nor consent to the act by the
complainant is a defense;

(f) the actor has a significant relationship to the complainant and the complainant
was at least 16 but under 18 years of age at the time of the sexual contact. Neither mistake
as to the complainant's age nor consent to the act by the complainant is a defense;

(g) the actor has a significant relationship to the complainant, the complainant was at
least 16 but under 18 years of age at the time of the sexual contact, and:

(i) the actor or an accomplice used force or coercion to accomplish the contact;

(ii) the complainant suffered personal injury; or

(iii) the sexual abuse involved multiple acts committed over an extended period of
time.

Neither mistake as to the complainant's age nor consent to the act by the complainant
is a defense;

(h) the actor is a psychotherapist and the complainant is a patient of the
psychotherapist and the sexual contact occurred:

(i) during the psychotherapy session; or

(ii) outside the psychotherapy session if an ongoing psychotherapist-patient
relationship exists. Consent by the complainant is not a defense;

(i) the actor is a psychotherapist and the complainant is a former patient of the
psychotherapist and the former patient is emotionally dependent upon the psychotherapist;

(j) the actor is a psychotherapist and the complainant is a patient or former patient
and the sexual contact occurred by means of therapeutic deception. Consent by the
complainant is not a defense;

(k) the actor accomplishes the sexual contact by means of deception or false
representation that the contact is for a bona fide medical purpose. Consent by the
complainant is not a defense;

(1) the actor is or purports to be a member of the clergy, the complainant is not
married to the actor, and:

(i) the sexual contact occurred during the course of a meeting in which the
complainant sought or received religious or spiritual advice, aid, or comfort from the
actor in private; or

(ii) the sexual contact occurred during a period of time in which the complainant
was meeting on an ongoing basis with the actor to seek or receive religious or spiritual
advice, aid, or comfort in private. Consent by the complainant is not a defense;

(m) the actor is an employee, independent contractor, or volunteer of a state, county,
city, or privately operated adult or juvenile correctional system, including, but not limited
to, jails, prisons, detention centers, or work release facilities, and the complainant is
a resident of a facility or under supervision of the correctional system. Consent by the
complainant is not a defense; deleted text begin or
deleted text end

(n) the actor provides or is an agent of an entity that provides special transportation
service, the complainant used the special transportation service, the complainant is not
married to the actor, and the sexual contact occurred during or immediately before or after
the actor transported the complainant. Consent by the complainant is not a defense deleted text begin . deleted text end new text begin ; or
new text end

new text begin (o) the actor performs or is an agent of an entity that performs personal body or
cosmetic services, the complainant was a user of one of those services, and nonconsensual
sexual contact occurred during or immediately before or after the actor performed one of
those services for the complainant.
new text end

Sec. 6. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 5 are effective August 1, 2006, and apply to crimes committed on or
after that date.
new text end