BP BHEAD INT S [atlas:bill]

AN ACT Relating to rape of an inmate or criminal defendant by a person with supervisory authority over the inmate or criminal defendant; amending RCW 9A.44.050 and 9A.44.100; reenacting and amending RCW 9A.44.010; adding new sections to chapter 9A.44 RCW; adding a new section to chapter 43.121 RCW; and prescribing penalties.

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

Sec. 1. RCW 9A.44.010 and 1997 c 392 s 513 and 1997 c 112 s 37 are each reenacted and amended to read as follows:

As used in this chapter:

(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

(2) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

(3) "Married" means one who is legally married to another, but does not include a person who is living separate and apart from his or her spouse and who has filed in an appropriate court for legal separation or for dissolution of his or her marriage.

(4) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

(5) "Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(6) "Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

(7) "Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

(8) "Significant relationship" means a situation in which the perpetrator is:

(a) A person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors;

(b) A person who in the course of his or her employment supervises minors; or

(c) A person who provides welfare, health or residential assistance, personal care, or organized recreational activities to frail elders or vulnerable adults, including a provider, employee, temporary employee, volunteer, or independent contractor who supplies services to long-term care facilities licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, but not including a consensual sexual partner.

(9) "Abuse of a supervisory position" means a direct or indirect threat or promise to use authority to the detriment or benefit of a minor.

(10) "Developmentally disabled," for purposes of RCW 9A.44.050(1)(c) and 9A.44.100(1)(c), means a person with a developmental disability as defined in RCW 71A.10.020.

(11) "Person with supervisory authority," for purposes of RCW 9A.44.050(1) (c) or (e) and 9A.44.100(1) (c) or (e), means any proprietor or employee of any public or private care or treatment facility who directly supervises developmentally disabled, mentally disordered, or chemically dependent persons at the facility, and any proprietor or employee of any public or private facility used for the incarceration, imprisonment, detention, or housing of inmates or criminal defendants, who directly supervises the inmate or criminal defendant at the facility.

(12) "Mentally disordered person" for the purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person with a "mental disorder" as defined in RCW 71.05.020.

(13) "Chemically dependent person" for purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person who is "chemically dependent" as defined in RCW 70.96A.020(4).

(14) "Health care provider" for purposes of RCW 9A.44.050 and 9A.44.100 means a person who is, holds himself or herself out to be, or provides services as if he or she were: (a) A member of a health care profession under chapter 18.130 RCW; or (b) registered or certified under chapter 18.19 RCW, regardless of whether the health care provider is licensed, certified, or registered by the state.

(15) "Treatment" for purposes of RCW 9A.44.050 and 9A.44.100 means the active delivery of professional services by a health care provider which the health care provider holds himself or herself out to be qualified to provide.

(16) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" also includes a person found incapacitated under chapter 11.88 RCW, a person over eighteen years of age who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW.

Sec. 2. RCW 9A.44.050 and 1997 c 392 s 514 are each amended to read as follows:

(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

(a) By forcible compulsion;

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment;

(e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; ((or))

(f) When the victim is a resident of a facility for inmates or criminal defendants and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or

(g) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Rape in the second degree is a class A felony.

Sec. 3. RCW 9A.44.100 and 1997 c 392 s 515 are each amended to read as follows:

(1) A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion;

(b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment;

(f) When the victim is a resident of a facility for inmates or criminal defendants and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or

(g) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Indecent liberties is a class B felony.

NEW SECTION. Sec. 4. A new section is added to chapter 9A.44 RCW to read as follows:

(1) The provisions of RCW 9A.44.050(1)(f) and 9A.44.100(1)(f) shall not apply unless the victim reports, directly or indirectly, the criminal act to a person who is in a supervisory capacity over the victim other than the alleged perpetrator within twenty-four hours of when the alleged incident occurred and submits to examination and testing by a qualified physician or nurse at the discretion of the facility.

(2) Notice of the provisions of this section shall be provided to residents of facilities for inmates or criminal defendants.

(3) Facility administrative staff, after making a finding that an inmate or criminal defendant made a false claim under the provisions of RCW 9A.44.050(1)(f) or 9A.44.100(1)(f), shall not be precluded from taking disciplinary action against that inmate or criminal defendant.

NEW SECTION. Sec. 5. A new section is added to chapter 9A.44 RCW to read as follows:

The public employment of a public employee who is convicted for violation of RCW 9A.44.050(1)(f) or 9A.44.100(1)(f), or is convicted for violation of another section of chapter 9A.44 RCW on allegations which led to charging under RCW 9A.44.050(1)(f) or 9A.44.100(1)(f), shall be terminated from employment upon conviction of the employee. The public employer of the public employee is immune from liability if the conviction of the employee is amended or reversed on appeal.

NEW SECTION. Sec. 6. A new section is added to chapter 43.121 RCW to read as follows:

A public employee who is convicted for violation of RCW 9A.44.050(1)(f) or 9A.44.100(1)(f), or is convicted for violation of another section of chapter 9A.44 RCW on allegations which led to charging under RCW 9A.44.050(1)(f) or 9A.44.100(1)(f), shall be liable for any costs incurred by the public employer as a result of the criminal actions of the employee, including any judgment costs. The public employer of the public employee shall have a right of lien on any undistributed assets or benefits belonging to the employee, including any public pension benefits.