Minnesota Session Laws - 1984, Regular Session

  

                         Laws of Minnesota 1984 

                        CHAPTER 588-H.F.No. 1279 
           An act relating to crimes; clarifying the crime of 
          contributing to the delinquency of a minor; providing 
          for the admissibility of certain statements as 
          evidence; expanding the definitions of sexual contact 
          and coercion; increasing the age limit of minor 
          victims protected under criminal sexual conduct 
          offenses; clarifying certain terms; amending Minnesota 
          Statutes 1982, sections 147.01, subdivision 4; 595.02; 
          609.341, subdivisions 11 and 14; 609.346; 609.347, 
          subdivision 3; 609.364, subdivision 9; 626.556, 
          subdivision 8; Minnesota Statutes 1983 Supplement, 
          sections 260.315; 609.344; and 609.345; proposing new 
          law coded in Minnesota Statutes, chapter 260. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1982, section 147.01, 
subdivision 4, is amended to read:  
    Subd. 4.  [DISCLOSURE.] All communications or information 
received by or disclosed to the board relating to any person or 
matter subject to its regulatory jurisdiction, and all records 
of any action or proceedings thereon, except only a final 
decision of the board, which shall state the specific reason 
therefor shall be confidential and privileged within the meaning 
of section 595.02, clause 5 subdivision 1, paragraph (e), and 
shall not be public records within the meaning of section 15.17, 
subdivision 4; provided that upon application of a party in a 
proceeding before the board pursuant to section 147.021, the 
board shall produce and permit the inspection and copying, by or 
on behalf of the moving party, of any designated documents or 
papers relevant to the proceedings, in accordance with the 
provisions of rule 34, Minnesota rules of civil procedure. 
    Sec. 2.  [260.156] [CERTAIN OUT-OF-COURT STATEMENTS 
ADMISSIBLE.] 
    An out-of-court statement made by a child under the age of 
ten years alleging, explaining, denying, or describing any act 
of sexual contact or penetration performed with or on the child 
by another, not otherwise admissible by statute or rule of 
evidence, is admissible in evidence in any dependency or neglect 
proceeding or any proceeding for termination of parental rights 
if:  
    (a) The court finds that the time, content, and 
circumstances of the statement and the reliability of the person 
to whom the statement is made provide sufficient indicia of 
reliability; and 
    (b) The proponent of the statement notifies other parties 
of his intention to offer the statement and the particulars of 
the statement sufficiently in advance of the proceeding at which 
he intends to offer the statement into evidence, to provide the 
parties with a fair opportunity to meet the statement.  
    Sec. 3.  Minnesota Statutes 1983 Supplement, section 
260.315, is amended to read: 
    260.315 [CONTRIBUTING TO NEGLECT OR DELINQUENCY.] 
    Any person who by act, word or omission encourages, causes 
or contributes to the neglect or delinquency of a child, or to a 
child's status as a habitual truant, runaway, juvenile petty 
offender, juvenile alcohol offender, or juvenile controlled 
substance offender, is guilty of a misdemeanor.  
    Sec. 4.  Minnesota Statutes 1982, section 595.02, is 
amended to read: 
    595.02 [TESTIMONY OF WITNESSES.] 
    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 follows provided in this subdivision:
    (1) (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, 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 
non-support, neglect, dependency, or termination of parental 
rights;.  
    (2) (b) An attorney cannot, without the consent of his 
client, be examined as to any communication made by the client 
to him or his 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;.  
    (3) (c) A clergyman 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 him in his professional 
character, in the course of discipline enjoined by the rules or 
practice of the religious body to which he belongs; nor shall a 
clergyman or other minister of any religion be examined as to 
any communication made to him by any person seeking religious or 
spiritual advice, aid, or comfort or his advice given thereon in 
the course of his professional character, without the consent of 
the person;.  
    (4) (d) A licensed physician or surgeon, dentist, or 
chiropractor shall not, without the consent of his patient, be 
allowed to disclose any information or any opinion based thereon 
which he acquired in attending the patient in a professional 
capacity, and which was necessary to enable him 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;.  
    (5) (e) A public officer shall not be allowed to disclose 
communications made to him in official confidence when the 
public interest would suffer by the disclosure;.  
    (6) (f) Persons of unsound mind;, persons intoxicated at 
the time of their production for examination, and children under 
ten years of age, who appear incapable of receiving just 
impressions of the if any of them lack capacity to remember or 
to relate truthfully facts respecting which they are examined, 
or of relating them truly, are not competent witnesses.  This 
exception does not apply to A child under ten years of age, in a 
criminal proceeding for intrafamilial sexual abuse as defined in 
section 609.364, subdivision 10, or in a criminal proceeding 
under sections 609.342 clause (a), 609.343 clause (a), 609.344 
clause (a), or 609.345 clause (a), who is able to describe or 
relate in describing any act of sexual contact or penetration 
performed on or with the child by another may use language 
appropriate for a child of that age the events or facts 
respecting which the child is examined;.  
    (7) (g) A registered nurse, psychologist or consulting 
psychologist shall not, without the consent of his client, be 
allowed to disclose any information or opinion based thereon 
which he acquired in attending the client in a professional 
capacity, and which was necessary to enable him to act in that 
capacity;.  
    (8) (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 he is required to 
participate.  The presence of an interpreter as an aid to 
communication does not destroy an otherwise existing privilege;. 
    (9) (i) A parent or his minor child may not be examined as 
to any communication made in confidence by the minor to his 
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 his 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;.  
    (10) (j) Sexual assault counselors may not be compelled to 
testify about 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.  
     Subd. 2.  [EXCEPTIONS.] (a) The exception provided by 
paragraphs (d) and (g) of subdivision 1 shall not apply to any 
testimony, records, or other evidence relating to the abuse or 
neglect of a minor in any proceeding under chapter 260 or any 
proceeding under section 245.801, to revoke a day care or foster 
care license, arising out of the neglect or physical or sexual 
abuse of a minor, as defined in section 626.556, subdivision 2.  
    (b) The exception provided by paragraphs (d) and (g) of 
subdivision 1 shall not apply to criminal proceedings arising 
out of the neglect or physical or sexual abuse of a minor, as 
defined in section 626.556, subdivision 2, if the court finds 
that:  
    (1) there is a reasonable likelihood that the records in 
question will disclose material information or evidence of 
substantial value in connection with the investigation or 
prosecution; and 
    (2) there is no other practicable way of obtaining the 
information or evidence.  This clause shall not be construed to 
prohibit disclosure of the patient record when it supports the 
otherwise uncorroborated statements of any material fact by a 
minor alleged to have been abused or neglected by the patient; 
and 
    (3) the actual or potential injury to the patient-health 
professional relationship in the treatment program affected, and 
the actual or potential harm to the ability of the program to 
attract and retain patients, is outweighed by the public 
interest in authorizing the disclosure sought.  
    No records may be disclosed under this paragraph other than 
the records of the specific patient suspected of the neglect or 
abuse of a minor.  Disclosure and dissemination of any 
information from a patient record shall be limited under the 
terms of the order to assure that no information will be 
disclosed unnecessarily and that dissemination will be no wider 
than necessary for purposes of the investigation or prosecution. 
    Subd. 3.  [CERTAIN OUT-OF-COURT STATEMENTS ADMISSIBLE.] An 
out-of-court statement made by a child under the age of ten 
years alleging, explaining, denying, or describing any act of 
sexual contact or penetration performed with or on the child by 
another, not otherwise admissible by statute or rule of 
evidence, is admissible in evidence if:  
    (a) the court or person authorized to receive evidence 
finds, in a hearing conducted outside of the presence of the 
jury, that the time, content, and circumstances of the statement 
and the reliability of the person to whom the statement is made 
provide sufficient indicia of reliability; and 
    (b) the child either:  
    (i) testifies at the proceedings; or 
    (ii) is unavailable as a witness and there is corroborative 
evidence of the act; and 
    (c) the proponent of the statement notifies the adverse 
party of his intention to offer the statement and the 
particulars of the statement sufficiently in advance of the 
proceeding at which he intends to offer the statement into 
evidence to provide the adverse party with a fair opportunity to 
prepare to meet the statement.  
    Sec. 5.  Minnesota Statutes 1982, section 609.341, 
subdivision 11, is amended to read: 
    Subd. 11.  "Sexual contact" includes any of the following 
acts committed without the complainant's consent, if the acts 
can reasonably be construed as being for the purpose of 
satisfying the actor's sexual or aggressive impulses, except in 
those cases where consent is not a defense: 
    (i) The intentional touching by the actor of the 
complainant's intimate parts, or 
    (ii) The touching by the complainant of the actor's, the 
complainant's, or another's intimate parts effected by coercion 
or the use of a position of authority, or by inducement if the 
complainant is under 13 years of age or mentally defective, or 
    (iii) The touching by another of the complainant's intimate 
parts effected by coercion or the use of a position of 
authority, or 
    (iv) In any of the cases above, of the clothing covering 
the immediate area of the intimate parts.  
    Sec. 6.  Minnesota Statutes 1982, section 609.341, 
subdivision 14, is amended to read: 
    Subd. 14.  "Coercion" means a threat to unlawfully words or 
circumstances that cause the complainant reasonably to fear that 
the actor will inflict bodily harm upon, or hold in confinement, 
the person threatened complainant or another. 
    Sec. 7.  Minnesota Statutes 1983 Supplement, section 
609.344, is amended to read: 
    609.344 [CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE.] 
    A person is guilty of criminal sexual conduct in the third 
degree and may be sentenced to imprisonment for not more than 
ten years, or to payment of a fine of not more than $10,000, or 
both, if he engages in sexual penetration with another person 
and 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; or 
    (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 it shall be an affirmative 
defense, which must be proved by a preponderance of the 
evidence, that the actor believes the complainant to be 16 years 
of age or older.  If the actor in such a case is no more than 48 
months but more than 24 months older than the complainant, he 
may be sentenced to imprisonment for not more than five years.  
Consent by the complainant is not a defense; or 
    (c) The actor uses force or coercion to accomplish the 
penetration; or 
    (d) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless; or 
     (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, 
and uses this authority to cause the complainant to submit. 
Neither mistake as to the complainant's age nor consent to the 
act by the complainant is a defense.  
    Sec. 8.  Minnesota Statutes 1983 Supplement, section 
609.345, is amended to read: 
    609.345 [CRIMINAL SEXUAL CONDUCT IN THE FOURTH DEGREE.] 
    A person is guilty of criminal sexual conduct in the fourth 
degree and may be sentenced to imprisonment for not more than 
five years, or to payment of a fine of not more than $5,000, or 
both, if he engages in sexual contact with another person and 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; or 
    (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 
and uses this authority to cause the complainant to submit.  In 
any such case, it shall be an affirmative defense which must be 
proved by a preponderance of the evidence that the actor 
believes the complainant to be 16 years of age or older; or 
    (c) The actor uses force or coercion to accomplish the 
sexual contact; or 
    (d) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless; or 
    (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, 
and uses this authority to cause the complainant to submit. 
Neither mistake as to the complainant's age nor consent to the 
act by the complainant is a defense. 
    Sec. 9.  Minnesota Statutes 1982, section 609.346, is 
amended to read: 
    609.346 [SUBSEQUENT OFFENSES.] 
    Subdivision 1.  [DEFINITION; CONVICTION OF OFFENSE.] For 
purposes of this section, the term "offense" means a completed 
offense or an attempt to commit an offense.  
    Subd. 2.  [SUBSEQUENT OFFENSE; PENALTY.] If a person is 
convicted of a second or subsequent offense under sections 
609.342 to 609.345 or sections 609.364 to 609.3644 within 15 
years of the prior conviction, the court shall commit the 
defendant to the commissioner of corrections for imprisonment 
for a term of not less than three years, nor more than the 
maximum sentence provided by law for the offense for which 
convicted, notwithstanding the provisions of sections 242.19, 
243.05, 609.11, 609.12 and 609.135. 
    Subd. 2 3.  [PRIOR CONVICTIONS UNDER SIMILAR STATUTES.] For 
the purposes of this section, an offense is considered a second 
or subsequent offense if, prior to conviction of the second or 
subsequent offense, the actor has been at any time convicted 
under sections 609.342 to 609.346 or sections 609.364 to 
609.3644 or under any similar statute of the United States, or 
this or any other state. 
    Sec. 10.  Minnesota Statutes 1982, section 609.347, 
subdivision 3, is amended to read: 
    Subd. 3.  In a prosecution under sections 609.342 to 
609.346 or 609.3641 to 609.365, evidence of the complainant's 
previous sexual conduct shall not be admitted nor shall any 
reference to such conduct be made in the presence of the jury, 
except by court order under the procedure provided in 
subdivision 4, and only to the extent that the court finds that 
any of the following proposed evidence is material to the fact 
at issue in the case and that its inflammatory or prejudicial 
nature does not outweigh its probative value: 
    (a) When consent or fabrication by the complainant is the 
defense in the case, evidence of such conduct tending to 
establish a common scheme or plan of similar sexual conduct 
under circumstances similar to the case at issue on the part of 
the complainant, relevant and material to the issue of consent 
or fabrication.  Evidence of such conduct engaged in more than 
one year prior to the date of alleged offense is inadmissible; 
    (b) Evidence of specific instances of sexual activity 
showing the source of semen, pregnancy, or disease at the time 
of the incident or, in the case of pregnancy, between the time 
of the incident and trial; 
    (c) Evidence of the complainant's past sexual conduct with 
the defendant; 
    (d) For purposes of impeachment, when such evidence is 
offered to rebut specific testimony of the complainant.  
    Sec. 11.  Minnesota Statutes 1982, section 609.364, 
subdivision 9, is amended to read: 
    Subd. 9.  [FAMILIAL RELATIONSHIP.] "Familial relationship" 
means a situation in which the actor is:  
    (a) The complainant's parent, stepparent, or guardian;  
    (b) Nearer of kin to the complainant than first cousin, 
computed by rules of the civil law, whether of the half or the 
whole blood;  
    (c) Any of the following persons related to the complainant 
by blood, marriage, or adoption:  brother, sister, stepbrother, 
stepsister, first cousin, aunt, uncle, nephew, niece, 
grandparent, great-grandparent, great-uncle, great-aunt; or 
    (d) (c) An adult who jointly resides intermittently or 
regularly in the same dwelling as the complainant and who is not 
the complainant's spouse.  
    Sec. 12.  Minnesota Statutes 1982, section 626.556, 
subdivision 8, is amended to read: 
    Subd. 8.  [EVIDENCE NOT PRIVILEGED.] No evidence regarding 
the child's injuries relating to the neglect or abuse of a child 
or to any prior incidents of neglect or abuse involving any of 
the same persons accused of neglect or abuse shall be excluded 
in any proceeding arising out of the alleged neglect or physical 
or sexual abuse on the grounds of either a physician-patient or 
husband-wife privilege set forth in section 595.02, subdivision 
1, paragraphs (a), (d), or (g). 
    Sec. 13.  [EFFECTIVE DATE.] 
    Sections 3, 7, and 8 are effective August 1, 1984, and 
apply to crimes committed on or after that date.  Sections 2, 4, 
and 12 are effective the day following final enactment. 
    Approved April 26, 1984