Ala. Admin. Code r. 950-1-3-.02

Current through Register Vol. 42, No. 8, May 31, 2024

Section 950-1-3-.02 - Statutory Authority

(1) The Department is vested with authority to make and enforce all rules and regulations which are necessary and appropriate to the proper accomplishment of the duties and functions vested in the Department by law with respect to youth services. Among the functions of the Department is the authority to license facilities for delinquent youth and authority to approve providers of sex offender treatment for youth who are adjudicated delinquent for a Sex Offense.

(2) Juveniles who are found to be delinquent for a Juvenile Criminal Sex Offense are required to receive sex offender treatment by an approved sex offender Treatment Provider (§ 15-20A-26). A written report on the assessment of risk for sexually re-offending shall be prepared by a Treatment Provider approved by the Department (§ 15-20A-26).

(3) Definitions (§ 13A-6-60) that apply to this rule are:

(a) Sexual Intercourse - such term has its ordinary meaning and occurs upon any penetration, however slight; emission is not required.

(b) Deviate Sexual Intercourse - any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

(c) Sexual Contact - any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.

(d) Mentally Defective - such term means that a person suffers from a mental disease or defect, which renders him [or her] incapable of appraising the nature of his [or her] conduct.

(e) Mentally Incapacitated - such term means that a person is rendered temporarily incapable of appraising or controlling his [or her] conduct owing to the influence of a narcotic or intoxicating substance administered to him [or her] without his [or her] consent, or to any other incapacitating act committed upon him [or her] without his [or her] consent.

(f) Physically Helpless - such term means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(g) Forcible Compulsion- physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself [or herself] or another person.

(4) Criminal Sex Offenses referred to in this rule are as defined under § 15-20A-5, Code of Alabama, 1975, as amended:

(a) Rape in the first degree or second degree.

1. A person commits the crime of rape in the first degree (§ 13A-6-61) if:

(i) He [or she] engages in Sexual Intercourse with a member of the opposite sex by Forcible Compulsion; or

(ii) He [or she] engages in Sexual Intercourse with a member of the opposite sex who is incapable of consent by reason of being Physically Helpless or Mentally Incapacitated; or

(iii) He [or she], being sixteen (16) years or older, engages in Sexual Intercourse with a member of the opposite sex who is less than twelve (12) years old.

2. Rape in the first degree is a Class A felony.

3. A person commits the crime of rape in the second degree (§ 13A-6-62) if:

(i) Being sixteen (16) years old or older, he [or she] engages in Sexual Intercourse with a member of the opposite sex less than sixteen (16) and more than twelve (12) years old; provided, however, the actor is at least two (2) years older than the member of the opposite sex;

(ii) He [or she] engages in Sexual Intercourse with a member of the opposite sex who is incapable of consent by reason of being Mentally Defective;

4. Rape in the second degree is a Class B felony.

(b) Sodomy in the first degree or second degree (§§ 13A-6-63 and 13A-6-64).

1. A person commits the crime of Sodomy in the first degree if:

(i) He [or she] engages in Deviate Sexual Intercourse with another person by Forcible Compulsion; or

(ii) He [or she] engages in Deviate Sexual Intercourse with a person who is incapable of consent by reason of being Physically Helpless or Mentally Incapacitated; or

(iii) He [or she], being sixteen (16) years old or older, engages in Deviate Sexual Intercourse with a person who is less than twelve (12) years old.

2. Sodomy in the first degree is a Class A felony.

3. A person commits the crime of Sodomy in the second degree if:

(i) He [or she], being sixteen (16) years old or older, engages in Deviate Sexual Intercourse with another person less than sixteen (16) and more than twelve (12) years old;

(ii) He [or she] engages in Deviate Sexual Intercourse with a person who is incapable of consent by reason of being Mentally Defective.

4. Sodomy in the second degree is a Class B felony.

(c) Sexual misconduct, Section 13A-6-65

1. On a first conviction or Adjudication a Juvenile Criminal Sex Offender is only subject to Registration and verification pursuant to Section 15-20A-1, et seq., Code of Ala. 1975, as amended, (the Alabama Sex Offender Registration and Community Notification Act).

2. On a second or subsequent conviction or Adjudication of a sex offense, if the second or subsequent conviction or Adjudication does not arise out of the same set of facts and circumstances as the first conviction or Adjudication of a sex offense, the Juvenile Criminal Sex Offender shall comply with all requirements of the Alabama Sex Offender Registration and Community Notification Act.

3. The Sentencing Court may exempt a Juvenile adjudicated delinquent of sexual misconduct from some or all requirements of the Alabama Sex Offender Registration and Community Act.

(d) Sexual torture (§ 13A-6-65.1).

1. A person commits the crime of sexual torture:

(i) By penetrating the vagina or anus or mouth of another person with an inanimate object by Forcible Compulsion with the intent to sexually torture or to sexually abuse;

(ii) By penetrating the vagina or anus or mouth of a person who is incapable of consent by reason of physical helplessness or mental incapacity with an inanimate object, with the intent to sexually torture or to sexually abuse;

(iii) By penetrating the vagina or anus or mouth of a person who is less than twelve (12) years old with an inanimate object, by a person who is sixteen (16) years old or older with the intent to sexually torture or to sexually abuse.

2. The crime of sexual torture is a Class A felony.

(e) Sexual abuse in the first degree and second degree (§§ 13A-6-66 and 13A-6-67).

1. A person commits the crime of sexual abuse in the first degree if:

(i) He [or she] subjects another person to Sexual Contact by Forcible Compulsion;

(ii) He [or she] subjects another person to Sexual Contact who is incapable of consent by reason of being Physically Helpless or Mentally Incapacitated;

(iii) He [or she], being sixteen (16) years old or older, subjects another person to Sexual Contact who is less than twelve (12) years old.

2. Sexual abuse in the first degree is a Class C felony.

3. A person commits the crime of sexual abuse in the second degree if:

(i) He [or she] subjects another person to Sexual Contact who is incapable of consent by reason of some factor other than being less than sixteen (16) years old;

(ii) He [or she], being nineteen (19) years old or older, subjects another person to Sexual Contact who is less than sixteen (16) years old, but more than twelve (12) years old;

(iii) Sexual abuse in the second degree is a Class A misdemeanor, except that if a person commits a second or subsequent offense of sexual abuse in the second degree within one (1) year of another sexual offense, the offense is a Class C felony.

(f) Indecent exposure (§ 13A-6-68)

1. On a first conviction or Adjudication of a sex offense, the youth with illegal sexual behavior problems is only subject to Registration and verification.

2. On a second or subsequent conviction or Adjudication of a sex offense, if the second or subsequent conviction or Adjudication does not arise out of the same set of facts and circumstances as the first conviction or Adjudication, the Juvenile Criminal Sex Offender shall comply with all requirements of the Alabama Sex Offender Registration and Community Act.

3. The Sentencing Court may exempt a Juvenile adjudicated delinquent of indecent exposure from some or all requirements of the Alabama Sex Offender Registration and Community Act.

(g) Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes (§ 13A-6-69).

1. It shall be unlawful for any person with lascivious intent to entice, allure, persuade or invite, or attempt to entice, allure, persuade or invite, any child under sixteen (16) years of age to enter any vehicle, room, house, office or other place for the purpose of proposing to such child the performance of an act of Sexual Intercourse or an act which constitutes the offense of Sodomy or for the purpose of proposing the fondling or feeling of the sexual or genital parts of such child or the breast of such child, or for the purpose of committing an aggravated assault on such child, or for the purpose of proposing that such child fondle or feel the sexual or genital parts of such person. Any person violating the provisions of this section shall, for the first violation, be punished by a fine not to exceed $5,000.00 or by confinement for a term not to exceed five (5) years, or by both fine and imprisonment; and any person who shall be convicted for the second violation of this section shall be punished by confinement in the penitentiary for not less than two (2) nor more than ten (10) years, and such person shall not be eligible for probation.

(h) Promoting prostitution in the first degree or second degree (§§ 13A-12-111 and 13A-12-112).

1. A person commits the crime of promoting prostitution in the first degree if he [or she] knowingly:

(i) Advances prostitution by compelling a person by force or intimidation to engage in prostitution, or profits from such coercive conduct by another; or

(ii) Advances or profits from prostitution of a person less than sixteen (16) years of age.

2. Promoting prostitution in the first degree is a Class B felony.

3. A person commits the crime of promoting prostitution in the second degree if he [or she] knowingly:

(i) Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two (2) or more prostitutes other than the defendant; or

(ii) Advances or profits from prostitution of a person less than eighteen (18) years of age.

4. Promoting prostitution in the second degree is a Class C felony.

(i) Violation of the Alabama Child Pornography Act.

1. Dissemination or display of obscene matter (§ 13A-12-191).

(i) Any person who shall knowingly disseminate or display publicly any obscene matter containing a visual reproduction of a person under the age of seventeen (17) years engaged in any act of sadomasochistic abuse, Sexual Intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony.

2. Possession of obscene matter (§ 13A-12-192).

(i) Any person who knowingly possesses with intent to disseminate any obscene matter containing a visual reproduction of a person under the age of seventeen (17) years engaged in any act of sadomasochistic abuse, Sexual Intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony. Possession of three (3) or more copies of the same obscene material is prima facie evidence of possession with intent to disseminate the same.

(ii) Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of seventeen (17) years engaged in any act of sadomasochistic abuse, Sexual Intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.

(j) Unlawful imprisonment in the first or second degree. (§ 13A-6-41 and § 13A-6-42)

1.

(i) A person commits the crime of unlawful imprisonment in the first degree if he restrains another person under circumstances which expose the latter to a risk of serious physical injury.

(ii) Unlawful imprisonment in the first degree is a Class A misdemeanor.

2. A person commits the crime of unlawful imprisonment in the second degree if he restrains another person.

(i) A person does not commit a crime under this section if:

(I) The person restrained is a child less than 18 years old, and

(II) The actor is a relative of the child, and

(III) The actor's sole purpose is to assume lawful control of the child.

(ii) Unlawful imprisonment in the second degree is a Class C misdemeanor.

(k) Kidnapping in the first degree, as provided by subdivision (4) of subsection (a) of Section 13A-6-43, if the intent of the abduction is to violate or abuse the victim sexually.

1. A person commits the crime of kidnapping in the first degree as provided by subdivision (4) of subsection (a) of Section 13A-6-43 if he abducts another person with intent to Inflict physical injury upon him, or to violate or abuse him sexually

(l) Kidnapping of a minor, except by a parent in the first or second degree (§§ 13A-6-43 and 13A-6-44).

1. A person commits the crime of kidnapping of a minor in the first degree if abducts another person with intent to:

(i) Hold him [or her] for ransom or reward; or

(ii) Use him [or her] as a shield or hostage; or

(iii) Accomplish or aid the commission of any felony or flight there from; or

(iv) Inflict physical injury upon him [or her], or to violate or abuse him [or her] sexually; or

(v) Terrorize him [or her] or a third person; or

(vi) Interfere with the performance of any governmental or political function.

2. A person does not commit the crime of kidnapping in the first degree if he [or she] voluntarily Releases the victim alive, and not suffering from serious physical injury, in a safe place prior to apprehension. The burden of injecting the issue of voluntary safe Release is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for or preclude a conviction of kidnapping in the second degree or any other crime.

3. Kidnapping in the first degree is a Class A felony.

4. A person commits the crime of kidnapping in the second degree if he [or she] abducts another person.

5. A person does not commit a crime under this section if:

(i) The abduction is not coupled with intent to use or to threaten to use deadly force;

(ii) The actor is a relative of the person abducted; and

(iii) The actor's sole purpose is to assume lawful control of that person. The burden of injecting the issue of defense under this subsection is on the defendant, but this does not shift the burden of proof.

6. Kidnapping in the second degree is a Class B felony.

(m) Incest (§ 13A-13-3).

1. A person commits incest if he [or she] marries or engages in Sexual Intercourse with a person he [or she] knows to be, either legitimately or illegitimately:

(i) His [or her] ancestor or descendant by blood or adoption; or

(ii) His [or her] brother or sister of the whole or half-blood or by adoption; or

(iii) His [or her] stepchild or stepparent, while the marriage creating the relationship exists; or

(iv) His [or her] aunt, uncle, nephew or niece of the whole or half-blood.

2. A person shall not be convicted of Incest or of an attempt to commit Incest upon the uncorroborated testimony of the person with whom the offense is alleged to have been committed.

3. Incest is a Class C felony.

(n) Transmitting obscene material to a child by computer (§13A-6-lll).

1. A person is guilty of transmitting obscene material to a child if the person transmits, by means of any computer communication system allowing the input, output, examination, or transfer of computer programs from one computer to another, material which, in whole or in part, depicts actual or simulated nudity, sexual conduct, or sadomasochistic abuse, for the purpose of initiating or engaging in sexual acts with the child.

2. For purposes of determining jurisdiction, the offense is committed in this state if the transmission that constitutes the offense either originates in this state or is received in this state.

3. A person charged under this section shall be tried as an adult and the record of the proceeding shall not be sealed nor subject to expungement.

4. Transmitting obscene material of engaging in Sexual Intercourse, Sodomy, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his [or her] benefit to a child is a Class B felony.

(o) School employee engaging in a sex act or deviant Sexual Intercourse with a student under 19 years. (§ 13A-6-81)

1. A person commits the crime of a school employee engaging in a sex act with a student under the age of 19 years if he or she:

(i) Is a school employee and engages in Sexual Intercourse as defined by Section 13A-6-60(1) or deviant Sexual Intercourse as defined by 13A-6-60(2) with a student, regardless of whether the student is male or female.

2. Consent is not a defense to a charge under this section

3. The crime of a school employee engaging in a sex act with a student is a Class B felony.

(p) School employee having Sexual Contact with a student under the age of 19 years. (§ 13A-6-82 a)

1. A person commits the crime of a school employee having Sexual Contact with a student under the age of 19 years if he or she

(i) is a school employee and

(ii) engages in Sexual Contact, as defined by Section 13A-6-60(3), with a student, regardless of whether the student is male or female.

2. Consent is not a defense to a charge under this section.

3. The crime of a school employee having Sexual Contact with a student is a Class C felony.

(q) School employee soliciting a sex act with a student under the age of 19 (§ 13A-6-82 b).

1. A person commits the crime of a school employee soliciting a sex act with a student under the age of 19 years if he or she

(i) is a school employee and

(ii) solicits, persuades, encourages, harasses, or entices a student to engage in a sex act including, but not limited to,

(I) Sexual Intercourse, as defined by Section 13A-6-30(1),

(II) Deviate Sexual Intercourse, as defined by Section 13A-6-30(2), or

(III) Sexual Contact, as defined by Section 13A-6-30(3).

2. The crime of soliciting a student to perform a sex act is a Class A misdemeanor.

(r) Facilitating solicitation of unlawful sexual conduct with a child. (§ 13A-6-121).

1. A person is guilty of facilitating solicitation of unlawful sexual conduct with a child who:

(i) knowingly compiles, enters into, or transmits by use of computer or otherwise; makes, prints, publishes, or reproduces by computerized or other means; knowingly causes or allows to be entered into or transmitted by use of computer or otherwise; or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement of any child's name, telephone number, place of residence, other geographical location, physical characteristics, or other descriptive or identifying information

(ii) for the purpose of facilitating, encouraging, offering, or soliciting unlawful sexual conduct of or with any child,

(iii) or the visual depiction of such conduct,

2. Any person who facilitates solicitation of unlawful sexual conduct with a child commits a Class C felony.

(s) Electronic solicitation of a child (§ 13A-6-122).

1. A person is guilty of electronic solicitation of a child who:

(i) In addition to the provisions of Section 13A-6-69,

(ii) knowingly, entices, induces, persuades, seduces, prevails, advises, coerces, lures, or orders, or attempts to entice, induce, persuade, seduce, prevail, advise, coerce, lure, or order, by means of a computer, on-line service, Internet service, Internet bulletin board service, weblog, cellular phone, video game system, personal data assistant, telephone, facsimile machine, camera, universal serial bus drive, writable compact disc, magnetic storage device, floppy disk, or any other electronic communication or storage device, a child who is at least three years younger than the defendant, or another person believed by the defendant to be a child at least three years younger than the defendant to meet with the defendant or any other person for the purpose of engaging in Sexual Intercourse, Deviate Sexual Intercourse, Sexual Contact, sexual performance, obscene sexual performance, sexual conduct, or genital mutilation or directs a child to engage in Sexual Intercourse, Deviate Sexual Intercourse Sexual Contact, sexual performance, obscene sexual performance, sexual conduct, or genital mutilation.

2. Any person who violates this section commits a Class B felony.

(t) Facilitating the on-line solicitation of a child (§ 13A-6-123)

1. Any owner or operator of a computer on-line service, weblog, Internet service, or Internet bulletin board service, is guilty of is guilty of facilitating the on-line solicitation of a child:

(i) who knowingly aids and abets another person or who, with the purpose of facilitating or encouraging the on-line solicitation of the child, permits any person to use the service to commit a violation of this article.

2. Any person who violates this section commits a Class B felony.

(u) Traveling to meet a child for an unlawful sex act (§ 13A-6-124).

1. Any person shall be guilty of traveling to meet a child for an unlawful sex act who

(i) travels either within this state, to this state, or from this state by any means,

(ii) attempts to do so, or

(iii) knowingly causes another to do so or to attempt to do so:

(iv) for the purpose of engaging in any unlawful sex act with a child, including Sexual Intercourse, Sodomy, a sexual performance, obscene sexual performance, or other sexual conduct for his or her benefit or for the benefit of another.

2. Any person who violates this section commits a Class A felony.

(v) Facilitating the travel of a child for an unlawful sex act (§ 13A-6-125).

1. Any person shall be guilty of facilitating the transport of a child for an unlawful sex act who:

(i) facilitates, arranges, provides, or pays for the transport of a child

(ii) for the purposes of engaging in an unlawful sex act with a child, including Sexual Intercourse, Sodomy, a sexual performance, obscene sexual performance, or other sexual conduct

(iii) for his or her benefit or for the benefit of another.

2. Any person who violates this section commits a Class A felony.

(w) Human trafficking in the first degree, (13A-6-152, provided that the offense involves sexual servitude)

1. A person commits the crime of human trafficking in the first degree if:

(i) He or she knowingly subjects another person to labor servitude or sexual servitude through use of Coercion or deception.

(ii) He or she knowingly obtains, recruits, entices, solicits, induces, threatens, isolates, harbors, holds, restrains, transports, provides, or maintains any minor for the purpose of causing a minor to engage in sexual servitude.

2. It is not required that the defendant have knowledge of a minor victim's age, nor is reasonable mistake of age a defense to liability.

3. Any person who obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section shall be guilty of a Class C felony.

4. Human trafficking in the first degree is a Class A felony.

(x) Human trafficking in the second degree, (§ 13A-6-153, provided that the offense involves sexual servitude)

1. A person commits the crime of human trafficking in the second degree if:

(i) A person knowingly benefits, financially or by receiving anything of value, from participation in a venture or engagement for the purpose of sexual servitude or labor servitude.

(ii) A person knowingly recruits, entices, solicits, induces, harbors, transports, holds, restrains, provides, maintains, subjects, or obtains by any means another person for the purpose of labor servitude or sexual servitude.

(iii) Any person who obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section shall be guilty of a Class A misdemeanor.

2. Human trafficking in the second degree is a Class B felony.

(y) Custodial sexual misconduct (§ 14-11-31)

1. It shall be unlawful for any employee to engage in sexual conduct with a person who is in the custody of the Department of Corrections, the Department of Youth Services, a sheriff, a county, or a municipality.

2. It shall be unlawful for any probation or parole officer to engage in sexual conduct with a person who is under the supervisory, disciplinary, or custodial authority of the officer engaging in the sexual conduct with the person.

3. Any person violating subsection (1.) or (2.) shall, upon conviction, be guilty of custodial sexual misconduct.

4. Custodial sexual misconduct is a Class C felony.

5. For purposes of this article, the consent of the person in custody of the Department of Corrections, the Department, a sheriff, a county, or a municipality, or a person who is on probation or on parole, shall not be a defense to a prosecution under this article.

(z) Sexual extortion (§ 13A-6-241)

1. A person commits the crime of sexual extortion if

(i) he or she knowingly causes another person to engage in Sexual Intercourse, Deviate Sexual Intercourse, Sexual Contact, or in a sexual act or to produce any photograph, digital image, video, film, or other recording of any person, whether recognizable or not, engaged in any act of sadomasochistic abuse, Sexual Intercourse, Deviate Sexual Intercourse sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct by transmitting any communication containing any threat to injure the body, property, or reputation of any person.

2. Sexual extortion is a Class B felony.

(aa) Directing a child to engage in a sex act (§ 13A-6-243).

1. A person commits the crime of directing a child to engage in Sexual Intercourse or Deviate Sexual Intercourse if :

(i) he or she knowingly entices, allures, persuades, induces, or directs any person under the age of 12 to engage in Sexual Intercourse or Deviate Sexual Intercourse with another person under the age of 12.

2. Directing a child to engage in Sexual Intercourse or Deviate Sexual Intercourse is a Class A felony.

3. A person commits the crime of directing a child to engage in Sexual Contact if

(i) he or she knowingly entices, allures, persuades, induces, or directs any person under the age of 12 to engage in Sexual Contact with another person under the age of 12.

(bb) A violation of this section is a Class C felony.

(cc) Any solicitation, attempt, or conspiracy to commit any of the offenses listed as Criminal Sex Offenses (§ 15-20-21).

(dd) Any crime committed in any state or a federal, military, Indian, or a foreign country jurisdiction which, if it had been committed in this state under the current provisions of law, would constitute an offense if listed in paragraphs (a) to (k), inclusive (§ 15-20-21).

Ala. Admin. Code r. 950-1-3-.02

New Rule: August 16, 2002; effective September 20, 2002.

Amended by Alabama Administrative Monthly Volume XXXVII, Issue No. 02, November 30, 2018, eff. 12/21/2018.

Author: Department of Youth Services

Statutory Authority:Code of Ala. 1975, § 44-1-24; Code of Ala. 1975, §§ 15-20-1 through 15-20-36; §§ 13A-6-60 through 13A-6-111.