Bill Text: AZ HB2699 | 2010 | Forty-ninth Legislature 2nd Regular | Engrossed
Bill Title: Child prostitution; classification
Spectrum: Partisan Bill (Republican 15-0)
Status: (Engrossed - Dead) 2010-04-13 - House minority caucus: Hold [HB2699 Detail]
Download: Arizona-2010-HB2699-Engrossed.html
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Senate Engrossed House Bill |
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State of Arizona House of Representatives Forty-ninth Legislature Second Regular Session 2010
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HOUSE BILL 2699 |
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AN ACT
amending title 12, chapter 5, article 1, Arizona Revised Statutes, by adding section 12‑512; Amending section 13‑3212, Arizona Revised Statutes; repealing section 13‑3213, Arizona Revised Statutes; amending section 13-3821, Arizona Revised Statutes; relating to sexual offenses.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 5, article 1, Arizona Revised Statutes, is amended by adding section 12-512, to read:
12-512. Civil action arising from sexual offenses; application; certificate of merit
A. Notwithstanding any law to the contrary, an action for recovery of damages based on physical, psychological or other injury or condition suffered as a result of the direct conduct of another committed against a minor, which would constitute a violation of title 13, chapter 14 or 35.1, child prostitution pursuant to section 13-3212, incest pursuant to section 13-3608 or an offense that was in effect before the effective date of this section and that, if committed on or after the effective date of this section, has the same elements of an offense listed in this section, may be commenced at any time.
B. Any cause of action that is barred as of the effective date of this section because the applicable period of limitation has expired is revived and an action may be commenced within one year after the effective date of this section.
C. Any cause of action brought pursuant to subsection B of this section may only be commenced for conduct that was committed against the minor thirty-five years or less before the effective date of this section or commenced within thirty-five years after the minor reaching eighteen years of age.
D. In Any civil action filed pursuant to subsection B of this section, a certificate of merit shall be filed by the attorney for the plaintiff. The certificate of merit shall contain a notarized statement by a qualified psychologist or behavioral health professional who is licensed pursuant to title 32, chapter 19.1 or 33 and who is knowledgeable in the relevant facts and issues involved in the particular action and shall state in reasonable detail the facts and opinions that the psychologist or behavioral health professional has relied on for concluding that there is a reasonable basis to believe that the plaintiff has been subject to one or more acts that would constitute an offense listed in subsection A of this section. The psychologist or behavioral health professional providing the statement may not be a party to the litigation. One certificate of merit shall be filed for each action even if more than one defendant is named in the complaint or is subsequently named.
E. Any claim brought under this section must be based on the direct negligent or intentional conduct of the defendant. No claim based solely on vicarious liability can be brought.
Sec. 2. Section 13-3212, Arizona Revised Statutes, is amended to read:
13-3212. Child prostitution; classification; increased punishment
A. A person commits child prostitution by knowingly:
1. Causing any minor to engage in prostitution.
2. Using any minor for the purposes of prostitution.
3. Permitting a minor who is under the person's custody or control to engage in prostitution.
4. Receiving any benefit for or on account of procuring or placing a minor in any place or in the charge or custody of any person for the purpose of prostitution.
5. Receiving any benefit pursuant to an agreement to participate in the proceeds of prostitution of a minor.
6. Financing, managing, supervising, controlling or owning, either alone or in association with others, prostitution activity involving a minor.
7. Transporting or financing the transportation of any minor with the intent that the minor engage in prostitution.
8. Engaging in prostitution with a minor.
B. A person who is at least eighteen years of age commits child prostitution by knowingly:
1. Engaging in prostitution with a minor under fifteen years of age.
2. Engaging in prostitution with a minor who the person knows is fifteen, sixteen or seventeen years of age.
3. Engaging in prostitution with a minor who is fifteen, sixteen, or seventeen years of age.
B. Notwithstanding any other law, a sentence imposed on a person for a violation of this section involving a minor who is fifteen, sixteen or seventeen years of age shall be consecutive to any other sentence imposed on the person at any time.
C. If a person is convicted of a violation of subsection A, paragraph 8 of this section, the victim is fifteen, sixteen or seventeen years of age and the court sentences the person to a term of probation, the court shall order that as an initial term of probation the person be imprisoned in the county jail for not less than thirty days. This jail term of incarceration shall not be deleted, deferred or otherwise suspended and shall commence on the date of sentencing. This subsection does not apply to persons who are sentenced to serve a period of incarceration in the state department of corrections.
C. It is not a defense to a prosecution under subsection A and subsection B, paragraphs 1 and 2 of this section that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor.
D. Child prostitution pursuant to subsection A of this section is a class 2 felony, and if the minor is under fifteen years of age it and is punishable pursuant to section 13‑705.
E. Child prostitution pursuant to subsection B, paragraph 1 of this section is a class 2 felony and is punishable pursuant to section 13-705.
E. F. If the minor is fifteen, sixteen or seventeen years of age, child prostitution pursuant to subsection A, paragraph 1, 2, 3, 4, 5, 6 or 7 and subsection B, paragraph 2 of this section is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13‑701, subsections C, D and E. The terms are as follows:
1. The term for a first offense is as follows:
Minimum Presumptive Maximum
7 years 10.5 years 21 years
2. The term for a defendant who has one historical prior felony conviction for a violation of this section is as follows:
Minimum Presumptive Maximum
14 years 15.75 years 28 years
3. The term for a defendant who has two or more historical prior felony convictions for a violation of this section is as follows:
Minimum Presumptive Maximum
21 years 28 years 35 years
G. Child prostitution pursuant to subsection B, paragraph 3 of this section is a class 6 felony. If the court sentences the person to a term of probation, the court shall order that as an initial term of probation the person be imprisoned in the county jail for not less than one hundred eighty consecutive days. This jail term shall commence on the date of sentencing. The court may suspend ninety days of the jail sentence if the person has not previously been convicted of a violation of this section, a violation of section 13-3214 or a violation of any city or town ordinance that prohibits prostitution and that has the same or substantially similar elements as section 13-3214 and the person successfully completes an appropriate court ordered education or treatment program.
H. Nothing in this section precludes the state from alleging and proving any other sentencing enhancements as provided by law.
Sec. 3. Repeal
Section 13-3213, Arizona Revised Statutes, is repealed.
Sec. 4. Section 13-3821, Arizona Revised Statutes, is amended to read:
13-3821. Persons required to register; procedure; identification card; assessment; definitions
A. A person who has been convicted of a violation or attempted violation of any of the following offenses or who has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the following offenses or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in this section or who is required to register by the convicting jurisdiction, within ten days after the conviction or within ten days after entering and remaining in any county of this state, shall register with the sheriff of that county:
1. Unlawful imprisonment pursuant to section 13‑1303 if the victim is under eighteen years of age and the unlawful imprisonment was not committed by the child's parent.
2. Kidnapping pursuant to section 13‑1304 if the victim is under eighteen years of age and the kidnapping was not committed by the child's parent.
3. Sexual abuse pursuant to section 13‑1404 if the victim is under eighteen years of age.
4. Sexual conduct with a minor pursuant to section 13‑1405.
5. Sexual assault pursuant to section 13‑1406.
6. Sexual assault of a spouse if the offense was committed before August 12, 2005.
7. Molestation of a child pursuant to section 13‑1410.
8. Continuous sexual abuse of a child pursuant to section 13‑1417.
9. Taking a child for the purpose of prostitution pursuant to section 13‑3206.
10. Child prostitution pursuant to section 13‑3212 subsection A or subsection B, paragraphs 1 or 2.
11. Commercial sexual exploitation of a minor pursuant to section 13‑3552.
12. Sexual exploitation of a minor pursuant to section 13‑3553.
13. Luring a minor for sexual exploitation pursuant to section 13‑3554.
14. Sex trafficking of a minor pursuant to section 13‑1307.
15. A second or subsequent violation of indecent exposure to a person under fifteen years of age pursuant to section 13‑1402.
16. A second or subsequent violation of public sexual indecency to a minor under the age of fifteen years pursuant to section 13‑1403, subsection B.
17. A third or subsequent violation of indecent exposure pursuant to section 13‑1402.
18. A third or subsequent violation of public sexual indecency pursuant to section 13‑1403.
19. A violation of section 13‑3822 or 13‑3824.
20. Unlawful age misrepresentation.
21. Aggravated luring a minor for sexual exploitation pursuant to section 13‑3560.
B. Before the person is released from confinement the state department of corrections in conjunction with the department of public safety and each county sheriff shall complete the registration of any person who was convicted of a violation of any offense listed under subsection A of this section. Within three days after the person's release from confinement, the state department of corrections shall forward the registered person's records to the department of public safety and to the sheriff of the county in which the registered person intends to reside. Registration pursuant to this subsection shall be consistent with subsection E of this section.
C. Notwithstanding subsection A of this section, the judge who sentences a defendant for any violation of chapter 14 or 35.1 of this title or for an offense for which there was a finding of sexual motivation pursuant to section 13‑118 may require the person who committed the offense to register pursuant to this section.
D. The court may require a person who has been adjudicated delinquent for an act that would constitute an offense specified in subsection A or C of this section to register pursuant to this section. Any duty to register under this subsection shall terminate when the person reaches twenty‑five years of age.
E. A person who has been convicted of or adjudicated delinquent and who is required to register in the convicting state for an act that would constitute an offense specified in subsection A or C of this section and who is not a resident of this state shall be required to register pursuant to this section if the person is either:
1. Employed full‑time or part‑time in this state, with or without compensation, for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year.
2. Enrolled as a full‑time or part‑time student in any school in this state for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year. For the purposes of this paragraph, "school" means an educational institution of any description, public or private, wherever located in this state.
F. Any duty to register under subsection D or E of this section for a juvenile adjudication terminates when the person reaches twenty‑five years of age.
G. The court may order the termination of any duty to register under this section on successful completion of probation if the person was under eighteen years of age when the offense for which the person was convicted was committed.
H. The court may order the suspension or termination of any duty to register under this section after a hearing held pursuant to section 13‑923.
I. At the time of registering, the person shall sign or affix an electronic fingerprint to a statement giving such information as required by the director of the department of public safety, including all names by which the person is known, any required online identifier and the name of any website or internet communication service where the identifier is being used. The sheriff shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to the department of public safety and the chief of police, if any, of the place where the person resides. The information that is required by this subsection shall include the physical location of the person's residence and the person's address. If the person has a place of residence that is different from the person's address, the person shall provide the person's address, the physical location of the person's residence and the name of the owner of the residence if the residence is privately owned and not offered for rent or lease. If the person receives mail at a post office box, the person shall provide the location and number of the post office box. If the person does not have an address or a permanent place of residence, the person shall provide a description and physical location of any temporary residence and shall register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present.
J. On the person's initial registration and every year after the person's initial registration, the person shall confirm any required online identifier and the name of any website or internet communication service where the identifier is being used and the person shall obtain a new nonoperating identification license or a driver license from the motor vehicle division in the department of transportation and shall carry a valid nonoperating identification license or a driver license. Notwithstanding sections 28‑3165 and 28‑3171, the license is valid for one year from the date of issuance, and the person shall submit to the department of transportation proof of the person's address and place of residence. The motor vehicle division shall annually update the person's address and photograph and shall make a copy of the photograph available to the department of public safety or to any law enforcement agency. The motor vehicle division shall provide to the department of public safety daily address updates for persons required to register pursuant to this section.
K. Except as provided in subsection E or L of this section, the clerk of the superior court in the county in which a person has been convicted of a violation of any offense listed under subsection A of this section or has been ordered to register pursuant to subsection C or D of this section shall notify the sheriff in that county of the conviction within ten days after entry of the judgment.
L. Within ten days after entry of judgment, a court not of record shall notify the arresting law enforcement agency of an offender's conviction of a violation of section 13‑1402. Within ten days after receiving this information, the law enforcement agency shall determine if the offender is required to register pursuant to this section. If the law enforcement agency determines that the offender is required to register, the law enforcement agency shall provide the information required by section 13‑3825 to the department of public safety and shall make community notification as required by law.
M. A person who is required to register pursuant to this section because of a conviction for the unlawful imprisonment of a minor or the kidnapping of a minor is required to register, absent additional or subsequent convictions, for a period of ten years from the date that the person is released from prison, jail, probation, community supervision or parole and the person has fulfilled all restitution obligations. Notwithstanding this subsection, a person who has a prior conviction for an offense for which registration is required pursuant to this section is required to register for life.
N. A person who is required to register pursuant to this section and who is a student at a public or private institution of postsecondary education or who is employed, with or without compensation, at a public or private institution of postsecondary education or who carries on a vocation at a public or private institution of postsecondary education shall notify the county sheriff having jurisdiction of the institution of postsecondary education. The person who is required to register pursuant to this section shall also notify the sheriff of each change in enrollment or employment status at the institution.
O. At the time of registering, the sheriff shall secure a sufficient sample of blood or other bodily substances for deoxyribonucleic acid testing and extraction from a person who has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the offenses listed in subsection A of this section or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in subsection A of this section or who is required to register by the convicting jurisdiction. The sheriff shall transmit the sample to the department of public safety.
P. Any person who is required to register under subsection A of this section shall register the person's required online identifier and the name of any website or internet communication service where the identifier is being used or is intended to be used with the sheriff from and after December 31, 2007, regardless of whether the person was required to register an identifier at the time of the person's initial registration under this section.
Q. On conviction of any offense for which a person is required to register pursuant to this section, in addition to any other penalty prescribed by law, the court shall order the person to pay an additional assessment of two hundred fifty dollars. This assessment is not subject to any surcharge. The court shall transmit the monies received pursuant to this section to the county treasurer. The county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the sex offender monitoring fund established by section 13‑3828. Notwithstanding any other law, the court shall not waive the assessment imposed pursuant to this section.
R. For the purposes of this section:
1. "Address" means the location at which the person receives mail.
2. "Required online identifier" means any electronic e‑mail address information or instant message, chat, social networking or other similar internet communication name, but does not include a social security number, date of birth or pin number.
3. "Residence" means the person's dwelling place, whether permanent or temporary.
