1.1 	A bill for an act
1.2 	relating to crimes; providing testimonial confidentiality for certain sexual assault 
1.3 	counselors; eliminating the "mistake of age" defense for certain criminal sexual 
1.4 	assault offenders; enhancing penalties for certain nonconsensual sexual contact 
1.5 	offenses committed by professionals engaged in massage or bodywork; amending 
1.6 	Minnesota Statutes 2006, sections 595.02, subdivision 1; 609.341, subdivision 
1.7 	11; 609.344, subdivision 1; 609.345, subdivision 1; 609.3451, subdivision 3.
1.8 	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.9 	Section 1. Minnesota Statutes 2006, section 595.02, subdivision 1, is amended to read:
1.10 		Subdivision 1.Competency of witnesses. Every person of sufficient understanding, 
1.11 	including a party, may testify in any action or proceeding, civil or criminal, in court or 
1.12 	before any person who has authority to receive evidence, except as provided in this 
1.13 	subdivision:
1.14 	(a) A husband cannot be examined for or against his wife without her consent, nor a 
1.15 	wife for or against her husband without his consent, nor can either, during the marriage or 
1.16 	afterwards, without the consent of the other, be examined as to any communication made 
1.17 	by one to the other during the marriage. This exception does not apply to a civil action or 
1.18 	proceeding by one against the other, nor to a criminal action or proceeding for a crime 
1.19 	committed by one against the other or against a child of either or against a child under the 
1.20 	care of either spouse, nor to a criminal action or proceeding in which one is charged with 
1.21 	homicide or an attempt to commit homicide and the date of the marriage of the defendant 
1.22 	is subsequent to the date of the offense, nor to an action or proceeding for nonsupport, 
1.23 	neglect, dependency, or termination of parental rights.
1.24 	(b) An attorney cannot, without the consent of the attorney's client, be examined as 
1.25 	to any communication made by the client to the attorney or the attorney's advice given 
2.1 	thereon in the course of professional duty; nor can any employee of the attorney be 
2.2 	examined as to the communication or advice, without the client's consent.
2.3 	(c) A member of the clergy or other minister of any religion shall not, without the 
2.4 	consent of the party making the confession, be allowed to disclose a confession made to 
2.5 	the member of the clergy or other minister in a professional character, in the course of 
2.6 	discipline enjoined by the rules or practice of the religious body to which the member of 
2.7 	the clergy or other minister belongs; nor shall a member of the clergy or other minister of 
2.8 	any religion be examined as to any communication made to the member of the clergy or 
2.9 	other minister by any person seeking religious or spiritual advice, aid, or comfort or advice 
2.10 	given thereon in the course of the member of the clergy's or other minister's professional 
2.11 	character, without the consent of the person.
2.12 	(d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the 
2.13 	consent of the patient, be allowed to disclose any information or any opinion based thereon 
2.14 	which the professional acquired in attending the patient in a professional capacity, and 
2.15 	which was necessary to enable the professional to act in that capacity; after the decease 
2.16 	of the patient, in an action to recover insurance benefits, where the insurance has been 
2.17 	in existence two years or more, the beneficiaries shall be deemed to be the personal 
2.18 	representatives of the deceased person for the purpose of waiving this privilege, and no 
2.19 	oral or written waiver of the privilege shall have any binding force or effect except when 
2.20 	made upon the trial or examination where the evidence is offered or received.
2.21 	(e) A public officer shall not be allowed to disclose communications made to the 
2.22 	officer in official confidence when the public interest would suffer by the disclosure.
2.23 	(f) Persons of unsound mind and persons intoxicated at the time of their production 
2.24 	for examination are not competent witnesses if they lack capacity to remember or to relate 
2.25 	truthfully facts respecting which they are examined.
2.26 	(g) A registered nurse, psychologist, consulting psychologist, or licensed social 
2.27 	worker engaged in a psychological or social assessment or treatment of an individual 
2.28 	at the individual's request shall not, without the consent of the professional's client, be 
2.29 	allowed to disclose any information or opinion based thereon which the professional has 
2.30 	acquired in attending the client in a professional capacity, and which was necessary to 
2.31 	enable the professional to act in that capacity. Nothing in this clause exempts licensed 
2.32 	social workers from compliance with the provisions of sections 626.556 and 626.557. 
2.33 	(h) An interpreter for a person disabled in communication shall not, without the 
2.34 	consent of the person, be allowed to disclose any communication if the communication 
2.35 	would, if the interpreter were not present, be privileged. For purposes of this section, a 
2.36 	"person disabled in communication" means a person who, because of a hearing, speech 
3.1 	or other communication disorder, or because of the inability to speak or comprehend the 
3.2 	English language, is unable to understand the proceedings in which the person is required 
3.3 	to participate. The presence of an interpreter as an aid to communication does not destroy 
3.4 	an otherwise existing privilege.
3.5 	(i) Licensed chemical dependency counselors shall not disclose information or 
3.6 	an opinion based on the information which they acquire from persons consulting them 
3.7 	in their professional capacities, and which was necessary to enable them to act in that 
3.8 	capacity, except that they may do so:
3.9 	(1) when informed consent has been obtained in writing, except in those 
3.10 	circumstances in which not to do so would violate the law or would result in clear and 
3.11 	imminent danger to the client or others;
3.12 	(2) when the communications reveal the contemplation or ongoing commission 
3.13 	of a crime; or
3.14 	(3) when the consulting person waives the privilege by bringing suit or filing charges 
3.15 	against the licensed professional whom that person consulted.
3.16 	(j) A parent or the parent's minor child may not be examined as to any communication 
3.17 	made in confidence by the minor to the minor's parent. A communication is confidential if 
3.18 	made out of the presence of persons not members of the child's immediate family living 
3.19 	in the same household. This exception may be waived by express consent to disclosure 
3.20 	by a parent entitled to claim the privilege or by the child who made the communication 
3.21 	or by failure of the child or parent to object when the contents of a communication are 
3.22 	demanded. This exception does not apply to a civil action or proceeding by one spouse 
3.23 	against the other or by a parent or child against the other, nor to a proceeding to commit 
3.24 	either the child or parent to whom the communication was made or to place the person or 
3.25 	property or either under the control of another because of an alleged mental or physical 
3.26 	condition, nor to a criminal action or proceeding in which the parent is charged with a 
3.27 	crime committed against the person or property of the communicating child, the parent's 
3.28 	spouse, or a child of either the parent or the parent's spouse, or in which a child is charged 
3.29 	with a crime or act of delinquency committed against the person or property of a parent 
3.30 	or a child of a parent, nor to an action or proceeding for termination of parental rights, 
3.31 	nor any other action or proceeding on a petition alleging child abuse, child neglect, 
3.32 	abandonment or nonsupport by a parent.
3.33 	(k) Sexual assault counselors may not be ~~compelled to testify about~~ allowed to 
3.34 	disclose any opinion or information received from or about the victim without the consent 
3.35 	of the victim. However, a counselor may be compelled to identify or disclose information 
3.36 	in investigations or proceedings related to neglect or termination of parental rights if the 
4.1 	court determines good cause exists. In determining whether to compel disclosure, the 
4.2 	court shall weigh the public interest and need for disclosure against the effect on the 
4.3 	victim, the treatment relationship, and the treatment services if disclosure occurs. Nothing 
4.4 	in this clause exempts sexual assault counselors from compliance with the provisions 
4.5 	of sections 626.556 and 626.557. 
4.6 	"Sexual assault counselor" for the purpose of this section means a person who has 
4.7 	undergone at least 40 hours of crisis counseling training and works under the direction 
4.8 	of a supervisor in a crisis center, whose primary purpose is to render advice, counseling, 
4.9 	or assistance to victims of sexual assault.
4.10 	(l) A person cannot be examined as to any communication or document, including 
4.11 	worknotes, made or used in the course of or because of mediation pursuant to an 
4.12 	agreement to mediate. This does not apply to the parties in the dispute in an application 
4.13 	to a court by a party to have a mediated settlement agreement set aside or reformed. 
4.14 	A communication or document otherwise not privileged does not become privileged 
4.15 	because of this paragraph. This paragraph is not intended to limit the privilege accorded 
4.16 	to communication during mediation by the common law.
4.17 	(m) A child under ten years of age is a competent witness unless the court finds that 
4.18 	the child lacks the capacity to remember or to relate truthfully facts respecting which the 
4.19 	child is examined. A child describing any act or event may use language appropriate for 
4.20 	a child of that age.
4.21 	(n) A communication assistant for a telecommunications relay system for 
4.22 	communication-impaired persons shall not, without the consent of the person making the 
4.23 	communication, be allowed to disclose communications made to the communication 
4.24 	assistant for the purpose of relaying.

4.25 	Sec. 2. Minnesota Statutes 2006, section 609.341, subdivision 11, is amended to read:
4.26 		Subd. 11.Sexual contact. (a) "Sexual contact," for the purposes of sections 
4.27 	609.343, subdivision 1, clauses (a) to (f), and 609.345, subdivision 1, clauses (a) to (e), 
4.28 	and (h) to ~~(m)~~ (n), includes any of the following acts committed without the complainant's 
4.29 	consent, except in those cases where consent is not a defense, and committed with sexual 
4.30 	or aggressive intent: 
4.31 	(i) the intentional touching by the actor of the complainant's intimate parts, or
4.32 	(ii) the touching by the complainant of the actor's, the complainant's, or another's 
4.33 	intimate parts effected by a person in a position of authority, or by coercion, or by 
4.34 	inducement if the complainant is under 13 years of age or mentally impaired, or
5.1 	(iii) the touching by another of the complainant's intimate parts effected by coercion 
5.2 	or by a person in a position of authority, or
5.3 	(iv) in any of the cases above, the touching of the clothing covering the immediate 
5.4 	area of the intimate parts.
5.5 	(b) "Sexual contact," for the purposes of sections 609.343, subdivision 1, clauses (g) 
5.6 	and (h), and 609.345, subdivision 1, clauses (f) and (g), includes any of the following acts 
5.7 	committed with sexual or aggressive intent: 
5.8 	(i) the intentional touching by the actor of the complainant's intimate parts;
5.9 	(ii) the touching by the complainant of the actor's, the complainant's, or another's 
5.10 	intimate parts;
5.11 	(iii) the touching by another of the complainant's intimate parts; or
5.12 	(iv) in any of the cases listed above, touching of the clothing covering the immediate 
5.13 	area of the intimate parts.
5.14 	(c) "Sexual contact with a person under 13" means the intentional touching of the 
5.15 	complainant's bare genitals or anal opening by the actor's bare genitals or anal opening 
5.16 	with sexual or aggressive intent or the touching by the complainant's bare genitals or anal 
5.17 	opening of the actor's or another's bare genitals or anal opening with sexual or aggressive 
5.18 	intent.

5.19 	Sec. 3. Minnesota Statutes 2006, section 609.344, subdivision 1, is amended to read:
5.20 		Subdivision 1.Crime defined. A person who engages in sexual penetration with 
5.21 	another person is guilty of criminal sexual conduct in the third degree if any of the 
5.22 	following circumstances exists:
5.23 	(a) the complainant is under 13 years of age and the actor is no more than 36 months 
5.24 	older than the complainant. Neither mistake as to the complainant's age nor consent to the 
5.25 	act by the complainant shall be a defense;
5.26 	(b) the complainant is at least 13 but less than 16 years of age and the actor is more 
5.27 	than 24 months older than the complainant. In any such case if the actor is no more 
5.28 	than 120 months older than the complainant, it shall be an affirmative defense, which 
5.29 	must be proved by a preponderance of the evidence, that the actor reasonably believes 
5.30 	the complainant to be 16 years of age or older. In all other cases, mistake as to the 
5.31 	complainant's age shall not be a defense. If the actor in such a case is no more than 48 
5.32 	months but more than 24 months older than the complainant, the actor may be sentenced 
5.33 	to imprisonment for not more than five years. Consent by the complainant is not a defense;
5.34 	(c) the actor uses force or coercion to accomplish the penetration;
6.1 	(d) the actor knows or has reason to know that the complainant is mentally impaired, 
6.2 	mentally incapacitated, or physically helpless;
6.3 	(e) the complainant is at least 16 but less than 18 years of age and the actor is 
6.4 	more than 48 months older than the complainant and in a position of authority over the 
6.5 	complainant. Neither mistake as to the complainant's age nor consent to the act by the 
6.6 	complainant is a defense;
6.7 	(f) the actor has a significant relationship to the complainant and the complainant 
6.8 	was at least 16 but under 18 years of age at the time of the sexual penetration. Neither 
6.9 	mistake as to the complainant's age nor consent to the act by the complainant is a defense;
6.10 	(g) the actor has a significant relationship to the complainant, the complainant was at 
6.11 	least 16 but under 18 years of age at the time of the sexual penetration, and:
6.12 	(i) the actor or an accomplice used force or coercion to accomplish the penetration;
6.13 	(ii) the complainant suffered personal injury; or
6.14 	(iii) the sexual abuse involved multiple acts committed over an extended period of 
6.15 	time.
6.16 	Neither mistake as to the complainant's age nor consent to the act by the complainant 
6.17 	is a defense;
6.18 	(h) the actor is a psychotherapist and the complainant is a patient of the 
6.19 	psychotherapist and the sexual penetration occurred:
6.20 	(i) during the psychotherapy session; or
6.21 	(ii) outside the psychotherapy session if an ongoing psychotherapist-patient 
6.22 	relationship exists.
6.23 	Consent by the complainant is not a defense;
6.24 	(i) the actor is a psychotherapist and the complainant is a former patient of the 
6.25 	psychotherapist and the former patient is emotionally dependent upon the psychotherapist;
6.26 	(j) the actor is a psychotherapist and the complainant is a patient or former patient 
6.27 	and the sexual penetration occurred by means of therapeutic deception. Consent by the 
6.28 	complainant is not a defense;
6.29 	(k) the actor accomplishes the sexual penetration by means of deception or false 
6.30 	representation that the penetration is for a bona fide medical purpose. Consent by the 
6.31 	complainant is not a defense;
6.32 	(1) the actor is or purports to be a member of the clergy, the complainant is not 
6.33 	married to the actor, and:
6.34 	(i) the sexual penetration occurred during the course of a meeting in which the 
6.35 	complainant sought or received religious or spiritual advice, aid, or comfort from the 
6.36 	actor in private; or
7.1 	(ii) the sexual penetration occurred during a period of time in which the complainant 
7.2 	was meeting on an ongoing basis with the actor to seek or receive religious or spiritual 
7.3 	advice, aid, or comfort in private. Consent by the complainant is not a defense;
7.4 	(m) the actor is an employee, independent contractor, or volunteer of a state, county, 
7.5 	city, or privately operated adult or juvenile correctional system, including, but not limited 
7.6 	to, jails, prisons, detention centers, or work release facilities, and the complainant is 
7.7 	a resident of a facility or under supervision of the correctional system. Consent by the 
7.8 	complainant is not a defense; ~~or~~
7.9 	(n) the actor provides or is an agent of an entity that provides special transportation 
7.10 	service, the complainant used the special transportation service, and the sexual penetration 
7.11 	occurred during or immediately before or after the actor transported the complainant. 
7.12 	Consent by the complainant is not a defense~~.~~; or
7.13 	(o) the actor performs massage or other bodywork for hire, the complainant was a 
7.14 	user of one of those services, and nonconsensual sexual penetration occurred during or 
7.15 	immediately before or after the actor performed or was hired to perform one of those 
7.16 	services for the complainant.

7.17 	Sec. 4. Minnesota Statutes 2006, section 609.345, subdivision 1, is amended to read:
7.18 		Subdivision 1.Crime defined. A person who engages in sexual contact with 
7.19 	another person is guilty of criminal sexual conduct in the fourth degree if any of the 
7.20 	following circumstances exists:
7.21 	(a) the complainant is under 13 years of age and the actor is no more than 36 months 
7.22 	older than the complainant. Neither mistake as to the complainant's age or consent to the 
7.23 	act by the complainant is a defense. In a prosecution under this clause, the state is not 
7.24 	required to prove that the sexual contact was coerced;
7.25 	(b) the complainant is at least 13 but less than 16 years of age and the actor is 
7.26 	more than 48 months older than the complainant or in a position of authority over 
7.27 	the complainant. Consent by the complainant to the act is not a defense. In any such 
7.28 	case, if the actor is no more than 120 months older than the complainant, it shall be an 
7.29 	affirmative defense which must be proved by a preponderance of the evidence that the 
7.30 	actor reasonably believes the complainant to be 16 years of age or older. In all other cases, 
7.31 	mistake as to the complainant's age shall not be a defense;
7.32 	(c) the actor uses force or coercion to accomplish the sexual contact;
7.33 	(d) the actor knows or has reason to know that the complainant is mentally impaired, 
7.34 	mentally incapacitated, or physically helpless;
8.1 	(e) the complainant is at least 16 but less than 18 years of age and the actor is 
8.2 	more than 48 months older than the complainant and in a position of authority over the 
8.3 	complainant. Neither mistake as to the complainant's age nor consent to the act by the 
8.4 	complainant is a defense;
8.5 	(f) the actor has a significant relationship to the complainant and the complainant 
8.6 	was at least 16 but under 18 years of age at the time of the sexual contact. Neither mistake 
8.7 	as to the complainant's age nor consent to the act by the complainant is a defense;
8.8 	(g) the actor has a significant relationship to the complainant, the complainant was at 
8.9 	least 16 but under 18 years of age at the time of the sexual contact, and:
8.10 	(i) the actor or an accomplice used force or coercion to accomplish the contact;
8.11 	(ii) the complainant suffered personal injury; or
8.12 	(iii) the sexual abuse involved multiple acts committed over an extended period of 
8.13 	time.
8.14 	Neither mistake as to the complainant's age nor consent to the act by the complainant 
8.15 	is a defense;
8.16 	(h) the actor is a psychotherapist and the complainant is a patient of the 
8.17 	psychotherapist and the sexual contact occurred:
8.18 	(i) during the psychotherapy session; or
8.19 	(ii) outside the psychotherapy session if an ongoing psychotherapist-patient 
8.20 	relationship exists. Consent by the complainant is not a defense;
8.21 	(i) the actor is a psychotherapist and the complainant is a former patient of the 
8.22 	psychotherapist and the former patient is emotionally dependent upon the psychotherapist;
8.23 	(j) the actor is a psychotherapist and the complainant is a patient or former patient 
8.24 	and the sexual contact occurred by means of therapeutic deception. Consent by the 
8.25 	complainant is not a defense;
8.26 	(k) the actor accomplishes the sexual contact by means of deception or false 
8.27 	representation that the contact is for a bona fide medical purpose. Consent by the 
8.28 	complainant is not a defense;
8.29 	(1) the actor is or purports to be a member of the clergy, the complainant is not 
8.30 	married to the actor, and:
8.31 	(i) the sexual contact occurred during the course of a meeting in which the 
8.32 	complainant sought or received religious or spiritual advice, aid, or comfort from the 
8.33 	actor in private; or
8.34 	(ii) the sexual contact occurred during a period of time in which the complainant 
8.35 	was meeting on an ongoing basis with the actor to seek or receive religious or spiritual 
8.36 	advice, aid, or comfort in private. Consent by the complainant is not a defense;
9.1 	(m) the actor is an employee, independent contractor, or volunteer of a state, county, 
9.2 	city, or privately operated adult or juvenile correctional system, including, but not limited 
9.3 	to, jails, prisons, detention centers, or work release facilities, and the complainant is 
9.4 	a resident of a facility or under supervision of the correctional system. Consent by the 
9.5 	complainant is not a defense; ~~or~~
9.6 	(n) the actor provides or is an agent of an entity that provides special transportation 
9.7 	service, the complainant used the special transportation service, the complainant is not 
9.8 	married to the actor, and the sexual contact occurred during or immediately before or after 
9.9 	the actor transported the complainant. Consent by the complainant is not a defense~~.~~; or
9.10 	(o) the actor performs massage or other bodywork for hire, the complainant was 
9.11 	a user of one of those services, and nonconsensual sexual contact occurred during or 
9.12 	immediately before or after the actor performed or was hired to perform one of those 
9.13 	services for the complainant.

9.14 	Sec. 5. Minnesota Statutes 2006, section 609.3451, subdivision 3, is amended to read:
9.15 		Subd. 3.Felony. A person is guilty of a felony and may be sentenced to 
9.16 	imprisonment for not more than five years or to payment of a fine of not more than $10,000, 
9.17 	or both, if the person violates ~~subdivision 1, clause (2)~~ this section, after having been 
9.18 	previously convicted of or adjudicated delinquent for violating ~~subdivision 1, clause (2)~~
9.19 	this section; sections 609.342 to 609.345; section 609.3453; section 617.23, subdivision 2, 
9.20 	clause (1); section 617.247; or a statute from another state in conformity ~~with subdivision~~ 
9.21 	~~1, clause (2), or section 617.23, subdivision 2, clause (1)~~ with one of these statutes. 

9.22 	Sec. 6. EFFECTIVE DATE.
 9.23 	Sections 1 to 5 are effective August 1, 2007, and apply to crimes committed on or 
9.24 	after that date.