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Minnesota Legislature

Office of the Revisor of Statutes

SF 2678

as introduced - 91st Legislature (2019 - 2020) Posted on 03/25/2019 04:39pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to public safety; establishing criminal penalties for peace officers who
have sexual relations with persons in custody; amending Minnesota Statutes 2018,
sections 609.344, subdivision 1; 609.345, subdivision 1.

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

Section 1.

Minnesota Statutes 2018, 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. In any such case if the actor is no more than 120
months older than the complainant, it shall be an affirmative defense, which must be proved
by a preponderance of the evidence, that the actor reasonably believes the complainant to
be 16 years of age or older. In all other cases, mistake as to the complainant's age shall not
be a defense. 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;

(l) 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, or secure treatment facility,
or treatment facility providing services to clients civilly committed as mentally ill and
dangerous, sexually dangerous persons, or sexual psychopathic personalities, 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;

(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 beginor
deleted text end

(o) the actor performs massage or other bodywork for hire, the complainant was a user
of one of those services, and nonconsensual sexual penetration occurred during or
immediately before or after the actor performed or was hired to perform one of those services
for the complainantdeleted text begin.deleted text endnew text begin; or
new text end

new text begin (p) the actor is a peace officer, as defined in section 626.84, and the peace officer
physically or constructively restrains the complainant or the complainant does not reasonably
feel free to leave the peace officer's presence. Consent by the complainant is not a defense.
This paragraph does not apply to any penetration of the mouth, genitals, or anus during a
lawful search.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to crimes
committed on or after that date.
new text end

Sec. 2.

Minnesota Statutes 2018, 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. In any such case, if the actor is no
more than 120 months older than the complainant, it shall be an affirmative defense which
must be proved by a preponderance of the evidence that the actor reasonably believes the
complainant to be 16 years of age or older. In all other cases, mistake as to the complainant's
age shall not be a defense;

(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;

(l) 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, or secure treatment facility,
or treatment facility providing services to clients civilly committed as mentally ill and
dangerous, sexually dangerous persons, or sexual psychopathic personalities, 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;

(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 beginor
deleted text end

(o) the actor performs massage or other bodywork for hire, the complainant was a user
of one of those services, and nonconsensual sexual contact occurred during or immediately
before or after the actor performed or was hired to perform one of those services for the
complainantdeleted text begin.deleted text endnew text begin; or
new text end

new text begin (p) the actor is a peace officer, as defined in section 626.84, and the peace officer
physically or constructively restrains the complainant or the complainant does not reasonably
feel free to leave the peace officer's presence. Consent by the complainant is not a defense.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to crimes
committed on or after that date.
new text end