Assembly Bill No. 78–Assemblymen McCleary, Conklin, Claborn, Chowning, Angle, Atkinson, Christensen, Geddes, Griffin, Hettrick, Horne, Manendo, Marvel and Weber

 

February 11, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes changes to various provisions pertaining to certain offenders who commit sexual offenses and crimes against children. (BDR 15‑1031)

 

FISCAL NOTE:    Effect on Local Government: No.

                             Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to offenders; revising the penalty for a sexual assault against a child under the age of 16 years; revising the penalty for lewdness with a child; prohibiting the suspension of sentence or granting of probation to a person convicted of lewdness with a child; revising certain provisions relating to the program that provides the public with access to certain information in the statewide registry concerning certain sex offenders and offenders convicted of a crime against a child; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 200.366 is hereby amended to read as follows:

1-2  200.366  1.  A person who subjects another person to sexual

1-3  penetration, or who forces another person to make a sexual

1-4  penetration on himself or another, or on a beast, against the will of

1-5  the victim or under conditions in which the perpetrator knows or

1-6  should know that the victim is mentally or physically incapable of

1-7  resisting or understanding the nature of his conduct, is guilty of

1-8  sexual assault.

2-1  2.  Except as otherwise provided in [subsection 3,] subsections

2-2  3 and 4, a person who commits a sexual assault is guilty of a

2-3  category A felony and shall be punished:

2-4  (a) If substantial bodily harm to the victim results from the

2-5  actions of the defendant committed in connection with or as a part

2-6  of the sexual assault, by imprisonment in the state prison:

2-7       (1) For life without the possibility of parole;

2-8       (2) For life with the possibility of parole, with eligibility for

2-9  parole beginning when a minimum of 15 years has been served; or

2-10          (3) For a definite term of 40 years, with eligibility for parole

2-11  beginning when a minimum of 15 years has been served.

2-12      (b) If no substantial bodily harm to the victim results, by

2-13  imprisonment in the state prison:

2-14          (1) For life, with the possibility of parole, with eligibility for

2-15  parole beginning when a minimum of 10 years has been served; or

2-16          (2) For a definite term of 25 years, with eligibility for parole

2-17  beginning when a minimum of 10 years has been served.

2-18      3.  [A] Except as otherwise provided in subsection 4, a person

2-19  who commits a sexual assault against a child under the age of 16

2-20  years is guilty of a category A felony and shall be punished:

2-21      (a) If the crime results in substantial bodily harm to the child, by

2-22  imprisonment in the state prison for life without the possibility of

2-23  parole.

2-24      (b) Except as otherwise provided in paragraph (c), if the crime

2-25  does not result in substantial bodily harm to the child, by

2-26  imprisonment in the state prison:

2-27          (1) For life with the possibility of parole, with eligibility for

2-28  parole beginning when a minimum of 20 years has been served; or

2-29          (2) For a definite term of [20] 40 years, with eligibility for

2-30  parole beginning when a minimum of [5] 15 years has been served.

2-31      (c) If the crime is committed against a child under the age of 14

2-32  years and does not result in substantial bodily harm to the child, by

2-33  imprisonment in the state prison for life with the possibility of

2-34  parole, with eligibility for parole beginning when a minimum of 20

2-35  years has been served.

2-36      4.  A person who commits a sexual assault against a child

2-37  under the age of 16 years and who has been previously convicted

2-38  of:

2-39      (a) A sexual assault pursuant to this section or any other

2-40  sexual offense against a child; or

2-41      (b) An offense committed in another jurisdiction that, if

2-42  committed in this state, would constitute a sexual assault pursuant

2-43  to this section or any other sexual offense against a child,

3-1  is guilty of a category A felony and shall be punished by

3-2  imprisonment in the state prison for life without the possibility of

3-3  parole.

3-4  5.  For the purpose of this section, “other sexual offense

3-5  against a child” means any act committed by an adult upon a child

3-6  constituting:

3-7  (a) Incest pursuant to NRS 201.180;

3-8  (b) Lewdness with a child pursuant to NRS 201.230;

3-9  (c) Sado-masochistic abuse pursuant to NRS 201.262; or

3-10      (d) Luring a child using a computer, system or network

3-11  pursuant to NRS 201.560, if punished as a felony.

3-12      Sec. 2.  NRS 201.230 is hereby amended to read as follows:

3-13      201.230  1.  A person who willfully and lewdly commits any

3-14  lewd or lascivious act, other than acts constituting the crime of

3-15  sexual assault, upon or with the body, or any part or member

3-16  thereof, of a child under the age of 14 years, with the intent of

3-17  arousing, appealing to, or gratifying the lust or passions or sexual

3-18  desires of that person or of that child, is guilty of lewdness with a

3-19  child.

3-20      2.  Except as otherwise provided in subsection 3, a person who

3-21  commits lewdness with a child is guilty of a category A felony and

3-22  shall be punished by imprisonment in the state prison for [life] :

3-23      (a) Life with the possibility of parole, with eligibility for parole

3-24  beginning when a minimum of 10 years has been served, and may

3-25  be further punished by a fine of not more than $10,000[.] ; or

3-26      (b) A definite term of 20 years, with eligibility for parole after

3-27  a minimum of 2 years has been served, and may further be

3-28  punished by a fine of not more than $10,000.

3-29      3.  A person who commits lewdness with a child and who has

3-30  been previously convicted of:

3-31      (a) Lewdness with a child pursuant to this section or any other

3-32  sexual offense against a child; or

3-33      (b) An offense committed in another jurisdiction that, if

3-34  committed in this state, would constitute lewdness with a child

3-35  pursuant to this section or any other sexual offense against a

3-36  child,

3-37  is guilty of a category A felony and shall be punished by

3-38  imprisonment in the state prison for life without the possibility of

3-39  parole.

3-40      4.  For the purpose of this section, “other sexual offense

3-41  against a child” has the meaning ascribed to it in subsection 5 of

3-42  NRS 200.366.

 

 

 

4-1  Sec. 3.  NRS 176A.100 is hereby amended to read as follows:

4-2  176A.100  1.  Except as otherwise provided in this section and

4-3  NRS 176A.110 and 176A.120, if a person is found guilty in a

4-4  district court upon verdict or plea of:

4-5  (a) Murder of the first or second degree, kidnapping in the first

4-6  degree, sexual assault, attempted sexual assault of a child who is

4-7  less than 16 years of age, lewdness with a child pursuant to NRS

4-8  201.230, an offense for which the suspension of sentence or the

4-9  granting of probation is expressly forbidden, or if the person is

4-10  found to be a habitual criminal pursuant to NRS 207.010, a

4-11  habitually fraudulent felon pursuant to NRS 207.014 or a habitual

4-12  felon pursuant to NRS 207.012, the court shall not suspend the

4-13  execution of the sentence imposed or grant probation to the person.

4-14      (b) A category E felony, except as otherwise provided in this

4-15  paragraph, the court shall suspend the execution of the sentence

4-16  imposed and grant probation to the person. The court may, as it

4-17  deems advisable, decide not to suspend the execution of the

4-18  sentence imposed and grant probation to the person if, at the time

4-19  the crime was committed, the person:

4-20          (1) Was serving a term of probation, whether in this state or

4-21  elsewhere, for a felony conviction;

4-22          (2) Had previously had his probation revoked, whether in

4-23  this state or elsewhere, for a felony conviction; or

4-24          (3) Had previously been two times convicted, whether in this

4-25  state or elsewhere, of a crime that under the laws of the situs of the

4-26  crime or of this state would amount to a felony.

4-27  If the person denies the existence of a previous conviction, the court

4-28  shall determine the issue of the previous conviction after hearing all

4-29  relevant evidence presented on the issue by the prosecution and the

4-30  person. At such a hearing, the person may not challenge the validity

4-31  of a previous conviction. For the purposes of this paragraph, a

4-32  certified copy of a felony conviction is prima facie evidence of

4-33  conviction of a prior felony.

4-34      (c) Another felony, a gross misdemeanor or a misdemeanor, the

4-35  court may suspend the execution of the sentence imposed and grant

4-36  probation as the court deems advisable.

4-37      2.  In determining whether to grant probation to a person, the

4-38  court shall not consider whether the person has the financial ability

4-39  to participate in a program of probation secured by a surety bond

4-40  established pursuant to NRS 176A.300 to 176A.370, inclusive.

4-41      3.  The court shall consider the standards adopted pursuant to

4-42  NRS 213.10988 and the recommendation of the Chief Parole and

4-43  Probation Officer, if any, in determining whether to grant probation

4-44  to a person.

5-1  4.  If the court determines that a person is otherwise eligible for

5-2  probation but requires more supervision than would normally be

5-3  provided to a person granted probation, the court may, in lieu of

5-4  sentencing him to a term of imprisonment, grant him probation

5-5  pursuant to the Program of Intensive Supervision established

5-6  pursuant to NRS 176A.440.

5-7  5.  Except as otherwise provided in this subsection, if a person

5-8  is convicted of a felony and the Division is required to make a

5-9  presentence investigation and report to the court pursuant to NRS

5-10  176.135, the court shall not grant probation to the person until the

5-11  court receives the report of the presentence investigation from the

5-12  Chief Parole and Probation Officer. The Chief Parole and Probation

5-13  Officer shall submit the report of the presentence investigation to

5-14  the court not later than 45 days after receiving a request for a

5-15  presentence investigation from the county clerk. If the report of the

5-16  presentence investigation is not submitted by the Chief Parole and

5-17  Probation Officer within 45 days, the court may grant probation

5-18  without the report.

5-19      6.  If the court determines that a person is otherwise eligible for

5-20  probation, the court shall, when determining the conditions of that

5-21  probation, consider the imposition of such conditions as would

5-22  facilitate timely payments by the person of his obligation, if any, for

5-23  the support of a child and the payment of any such obligation which

5-24  is in arrears.

5-25      Sec. 4.  NRS 176A.110 is hereby amended to read as follows:

5-26      176A.110  1.  The court shall not grant probation to or

5-27  suspend the sentence of a person convicted of an offense listed in

5-28  subsection 3 unless:

5-29      (a) If a psychosexual evaluation of the person is required

5-30  pursuant to NRS 176.139, the person who conducts the

5-31  psychosexual evaluation certifies in the report prepared pursuant to

5-32  NRS 176.139 that the person convicted of the offense does not

5-33  represent a high risk to reoffend based upon a currently accepted

5-34  standard of assessment; or

5-35      (b) If a psychosexual evaluation of the person is not required

5-36  pursuant to NRS 176.139, a psychologist licensed to practice in this

5-37  state who is trained to conduct psychosexual evaluations or a

5-38  psychiatrist licensed to practice medicine in this state who is

5-39  certified by the American Board of Psychiatry and Neurology , Inc.,

5-40  and is trained to conduct psychosexual evaluations certifies in a

5-41  written report to the court that the person convicted of the offense

5-42  does not represent a high risk to reoffend based upon a currently

5-43  accepted standard of assessment.

5-44      2.  This section does not create a right in any person to be

5-45  certified or to continue to be certified. No person may bring a cause

6-1  of action against the State, its political subdivisions, or the agencies,

6-2  boards, commissions, departments, officers or employees of the

6-3  State or its political subdivisions for not certifying a person pursuant

6-4  to this section or for refusing to consider a person for certification

6-5  pursuant to this section.

6-6  3.  The provisions of this section apply to a person convicted of

6-7  any of the following offenses:

6-8  (a) Attempted sexual assault of a person who is 16 years of age

6-9  or older pursuant to NRS 200.366.

6-10      (b) Statutory sexual seduction pursuant to NRS 200.368.

6-11      (c) Battery with intent to commit sexual assault pursuant to

6-12  NRS 200.400.

6-13      (d) Abuse or neglect of a child pursuant to NRS 200.508.

6-14      (e) An offense involving pornography and a minor pursuant to

6-15  NRS 200.710 to 200.730, inclusive.

6-16      (f) Incest pursuant to NRS 201.180.

6-17      (g) Solicitation of a minor to engage in acts constituting the

6-18  infamous crime against nature pursuant to NRS 201.195.

6-19      (h) Open or gross lewdness pursuant to NRS 201.210.

6-20      (i) Indecent or obscene exposure pursuant to NRS 201.220.

6-21      (j) [Lewdness with a child pursuant to NRS 201.230.

6-22      (k)] Sexual penetration of a dead human body pursuant to

6-23  NRS 201.450.

6-24      [(l)] (k) Luring a child using a computer, system or network

6-25  pursuant to NRS 201.560, if punished as a felony.

6-26      [(m)] (l) A violation of NRS 207.180.

6-27      [(n)] (m) An attempt to commit an offense listed in paragraphs

6-28  (b) to [(m), inclusive.

6-29      (o)] (l), inclusive.

6-30      (n) Coercion or attempted coercion that is determined to be

6-31  sexually motivated pursuant to NRS 207.193.

6-32      Sec. 5.  Chapter 179B of NRS is hereby amended by adding

6-33  thereto a new section to read as follows:

6-34      “Offender” means a sex offender or an offender convicted of a

6-35  crime against a child.

6-36      Sec. 6.  NRS 179B.010 is hereby amended to read as follows:

6-37      179B.010  As used in this chapter, unless the context otherwise

6-38  requires, the words and terms defined in NRS 179B.020 to

6-39  179B.140, inclusive, and section 5 of this act have the meanings

6-40  ascribed to them in those sections.

6-41      Sec. 7.  NRS 179B.250 is hereby amended to read as follows:

6-42      179B.250  1.  The Department shall, in a manner prescribed

6-43  by the Director, establish within the Central Repository a program to

6-44  provide the public with access to certain information contained in

6-45  the statewide registry. The program may include, but is not limited

7-1  to, the use of a secure website on the Internet or other electronic

7-2  means of communication to provide the public with access to certain

7-3  information contained in the statewide registry if such information is

7-4  made available and disclosed in accordance with the procedures set

7-5  forth in this section.

7-6  2.  [Before a search of the statewide registry is conducted on

7-7  behalf of a requester seeking information from the program, the

7-8  requester must provide his name, address and telephone number and

7-9  the following information concerning the identity of the subject of

7-10  the search:

7-11      (a) The name of the subject of the search and at least one of the

7-12  following items:

7-13          (1) The social security number of the subject of the search;

7-14          (2) The identification number from a driver’s license or an

7-15  identification card issued to the subject of the search by this state; or

7-16          (3) The date of birth of the subject of the search; or

7-17      (b) The name and address of the subject of the search and all of

7-18  the following items:

7-19          (1) The race or ethnicity of the subject of the search;

7-20          (2) The hair color and eye color of the subject of the search;

7-21          (3) The approximate height and weight of the subject of the

7-22  search; and

7-23          (4) The approximate age of the subject of the search.

7-24  After conducting a search based upon information provided

7-25  pursuant to paragraph (a) or (b), the Central Repository may require

7-26  the requester to provide additional information to confirm the

7-27  identity of the subject of the search. The additional information may

7-28  include, but is not limited to, the license number from a motor

7-29  vehicle frequently driven by the subject of the search, the employer

7-30  of the subject of the search or any information listed in paragraph

7-31  (a) or (b) that was not provided for the initial search.

7-32      3.  After conducting a search of the statewide registry on behalf

7-33  of a requester,] For each inquiry to the program, the requester

7-34  must provide:

7-35      (a) The name of the subject of the search;

7-36      (b) Any alias of the subject of the search;

7-37      (c) The zip code of the residence, place of work or school of

7-38  the subject of the search; or

7-39      (d) Any other information concerning the identity or location

7-40  of the subject of the search that is deemed sufficient in the

7-41  discretion of the Department.

7-42      3.  For each inquiry to the program, made by the requester,

7-43  the Central Repository shall:

7-44      (a) Explain the levels of notification that are assigned to sex

7-45  offenders pursuant to NRS 179D.730; and

8-1  (b) Explain that the Central Repository is prohibited by law

8-2  from disclosing information concerning certain offenders, even if

8-3  those offenders are listed in the statewide registry.

8-4  4.  If an offender listed in the statewide registry matches the

8-5  information provided by the requester concerning the identity or

8-6  location of the subject of the search, the Central Repository:

8-7  (a) Shall disclose to the requester information concerning an

8-8  offender who is assigned a Tier 3 level of notification.

8-9  (b) May, in the discretion of the Department, disclose to the

8-10  requester information concerning an offender who is assigned a

8-11  Tier 2 level of notification.

8-12      (c) Shall not disclose to the requester information concerning

8-13  an offender who is assigned a Tier 1 level of notification.

8-14      5.  After each inquiry to the program made by the requester,

8-15  the Central Repository shall inform the requester that:

8-16      (a) No [person] offender listed in the statewide registry matches

8-17  the information provided by the requester concerning the identity or

8-18  location of the subject of the search;

8-19      (b) The search of the statewide registry has not produced

8-20  information that is available to the public through the statewide

8-21  registry;

8-22      (c) The requester needs to provide additional information

8-23  concerning the identity or location of the subject of the search

8-24  before the Central Repository may disclose the results of the search;

8-25  or

8-26      [(c) A person]

8-27      (d) An offender listed in the statewide registry matches the

8-28  information provided by the requester concerning the identity or

8-29  location of the subject of the search. If a search of the statewide

8-30  registry results in a match pursuant to this paragraph, the Central

8-31  Repository:

8-32          (1) Shall inform the requester of the name or any alias of

8-33  the offender and the zip codes of the residence, work place and

8-34  school of the offender.

8-35          (2) Shall inform the requester of each offense for which the

8-36  [subject of the search] offender was convicted , describing each

8-37  offense in language that is understandable to the ordinary

8-38  layperson, and the date and location of each conviction.

8-39          [(2)] (3) Shall inform the requester of the age of the victim

8-40  and offender at the time of each offense.

8-41          (4) May, through the use of a secure website on the Internet

8-42  or other electronic means of communication, provide the requester

8-43  with a photographic image of the [subject of the search] offender if

8-44  such an image is available.

9-1       [(3)] (5) Shall not provide the requester with any other

9-2  information that is included in the record of registration for the

9-3  [subject of the search.

9-4  4.] offender.

9-5  6. For each inquiry to the program, the Central Repository shall

9-6  [:

9-7  (a) Charge a fee to the requester;

9-8  (b) Maintain] maintain a log of the information provided by the

9-9  requester to the Central Repository and the information provided by

9-10  the Central Repository to the requester . [; and

9-11      (c) Inform the requester that information obtained through the

9-12  program may not be used to violate the law or the individual rights

9-13  of another person and that such misuse of information obtained

9-14  through the program may subject the requester to criminal

9-15  prosecution or civil liability for damages.

9-16      5.] 7. A person may not use information obtained through the

9-17  program as a substitute for information relating to sexual offenses

9-18  that must be provided by the Central Repository pursuant to NRS

9-19  179A.180 to 179A.240, inclusive, or another provision of law.

9-20      8.  The provisions of this section do not prevent law

9-21  enforcement officers, the Central Repository and its officers and

9-22  employees, or any other person from:

9-23      (a) Accessing information in the statewide registry pursuant to

9-24  NRS 179B.200;

9-25      (b) Carrying out any duty pursuant to chapter 179D of NRS;

9-26  or

9-27      (c) Carrying out any duty pursuant to another provision of

9-28  law.

9-29      Sec. 8.  NRS 179B.260 is hereby repealed.

9-30      Sec. 9.  The amendatory provisions of this act apply to offenses

9-31  committed before October 1, 2003, for the purpose of determining

9-32  whether a person is subject to the provisions of subsection 4 of NRS

9-33  200.366 or subsection 3 of NRS 201.230, as amended by this act.

 

9-34  TEXT OF REPEALED SECTION

 

9-35      179B.260  Use of fees collected from operation of program. 

9-36  All money received by the Central Repository from operation of the

9-37  program must be used as provided in subsection 2 of

9-38  NRS 179A.140.

 

9-39  H