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H0796......................................................by STATE AFFAIRS
STATUTORY RAPE - Amends and adds to existing law to define "statutory
rape"; to provide for punishment; to revise the definition of "aggravated
offense"; to revise application of the Sexual Offender Registration
Notification and Community Right-to-Know Act; and to provide references to
statutory rape.
03/01 House intro - 1st rdg - to printing
03/02 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 796
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO STATUTORY RAPE; AMENDING SECTIONS 16-1602, 16-2002 AND 16-2005,
3 IDAHO CODE, TO PROVIDE REFERENCES TO STATUTORY RAPE; AMENDING SECTION
4 18-310, IDAHO CODE, TO PROVIDE A REFERENCE TO STATUTORY RAPE AND TO MAKE
5 TECHNICAL CHANGES; AMENDING SECTION 18-608, IDAHO CODE, TO PROVIDE REFER-
6 ENCES TO STATUTORY RAPE AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC-
7 TIONS 18-909, 18-911, 18-4003, 18-4006 AND 18-4502, IDAHO CODE, TO PROVIDE
8 REFERENCES TO STATUTORY RAPE; AMENDING SECTION 18-6101, IDAHO CODE, TO
9 REMOVE LANGUAGE REFERENCING RAPE OF FEMALES UNDER THE AGE OF EIGHTEEN
10 YEARS, TO PROVIDE CLARIFYING LANGUAGE AND TO MAKE TECHNICAL CORRECTIONS;
11 AMENDING SECTIONS 18-6102, 18-6103 AND 18-6105, IDAHO CODE, TO PROVIDE
12 REFERENCES TO STATUTORY RAPE; AMENDING SECTION 18-6107, IDAHO CODE, TO
13 PROVIDE CORRECT CODE REFERENCES; AMENDING CHAPTER 61, TITLE 18, IDAHO
14 CODE, BY THE ADDITION OF A NEW SECTION 18-6111, IDAHO CODE, TO DEFINE
15 "STATUTORY RAPE" AND TO PROVIDE FOR PUNISHMENT; AMENDING SECTION 18-8303,
16 IDAHO CODE, TO REVISE THE DEFINITION OF "AGGRAVATED OFFENSE"; AMENDING
17 SECTION 18-8304, IDAHO CODE, TO REVISE APPLICATION OF THE SEXUAL OFFENDER
18 REGISTRATION NOTIFICATION AND COMMUNITY RIGHT-TO-KNOW ACT; AMENDING SEC-
19 TION 18-8314, IDAHO CODE, TO PROVIDE A CODE REFERENCE AND TO PROVIDE AN
20 EXCEPTION; AMENDING SECTION 19-202A, IDAHO CODE, TO PROVIDE A REFERENCE TO
21 STATUTORY RAPE; AMENDING SECTIONS 19-401 AND 19-402, IDAHO CODE, TO PRO-
22 VIDE CORRECT CODE REFERENCES; AMENDING SECTION 19-2515, IDAHO CODE, TO
23 PROVIDE REFERENCES TO STATUTORY RAPE; AMENDING SECTION 19-2520, IDAHO
24 CODE, TO PROVIDE REFERENCES TO STATUTORY RAPE AND TO MAKE A TECHNICAL COR-
25 RECTION; AMENDING SECTIONS 19-2520C AND 19-5307, IDAHO CODE, TO PROVIDE
26 REFERENCES TO STATUTORY RAPE; AMENDING SECTION 19-5506, IDAHO CODE, TO
27 PROVIDE REFERENCES TO STATUTORY RAPE AND TO MAKE A TECHNICAL CORRECTION;
28 AMENDING SECTION 20-223, IDAHO CODE, TO PROVIDE REFERENCES TO STATUTORY
29 RAPE; AMENDING SECTION 20-240, IDAHO CODE, TO PROVIDE REFERENCES TO STATU-
30 TORY RAPE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 20-525A,
31 IDAHO CODE, TO REMOVE A REFERENCE TO STATUTORY RAPE AND TO MAKE A TECHNI-
32 CAL CORRECTION; AMENDING SECTION 33-1208, IDAHO CODE, TO PROVIDE REFER-
33 ENCES TO STATUTORY RAPE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SEC-
34 TIONS 39-1113 AND 56-209c, IDAHO CODE, TO PROVIDE REFERENCES TO STATUTORY
35 RAPE; AND AMENDING SECTION 72-1025, IDAHO CODE, TO PROVIDE A CODE REFER-
36 ENCE.
37 Be It Enacted by the Legislature of the State of Idaho:
38 SECTION 1. That Section 16-1602, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 16-1602. DEFINITIONS. For purposes of this chapter:
41 (1) "Abused" means any case in which a child has been the victim of:
42 (a) Conduct or omission resulting in skin bruising, bleeding, malnutri-
43 tion, burns, fracture of any bone, subdural hematoma, soft tissue swell-
2
1 ing, failure to thrive or death, and such condition or death is not justi-
2 fiably explained, or where the history given concerning such condition or
3 death is at variance with the degree or type of such condition or death,
4 or the circumstances indicate that such condition or death may not be the
5 product of an accidental occurrence; or
6 (b) Sexual conduct, including rape, statutory rape, molestation, incest,
7 prostitution, obscene or pornographic photographing, filming or depiction
8 for commercial purposes, or other similar forms of sexual exploitation
9 harming or threatening the child's health or welfare or mental injury to
10 the child.
11 (2) "Abandoned" means the failure of the parent to maintain a normal
12 parental relationship with his child including, but not limited to, reasonable
13 support or regular personal contact. Failure to maintain this relationship
14 without just cause for a period of one (1) year shall constitute prima facie
15 evidence of abandonment.
16 (3) "Adaptive equipment" means any piece of equipment or any item that is
17 used to increase, maintain or improve the parenting capabilities of a parent
18 with a disability.
19 (4) "Adjudicatory hearing" means a hearing to determine:
20 (a) Whether the child comes under the jurisdiction of the court pursuant
21 to the provisions of this chapter;
22 (b) Whether continuation of the child in the home would be contrary to
23 the child's welfare and whether the best interests of the child require
24 protective supervision or vesting legal custody of the child in an autho-
25 rized agency;
26 (c) Whether aggravated circumstances as defined in section 16-1608, Idaho
27 Code, exist.
28 (5) "Authorized agency" means the department, a local agency, a person,
29 an organization, corporation, benevolent society or association licensed or
30 approved by the department or the court to receive children for control, care,
31 maintenance or placement.
32 (6) "Child" means an individual who is under the age of eighteen (18)
33 years.
34 (7) "Child advocate coordinator" means a person or entity receiving
35 moneys from the grant administrator for the purpose of carrying out any of the
36 duties as set forth in section 16-1630, Idaho Code.
37 (8) "Circumstances of the child" includes, but is not limited to, the
38 joint legal custody or joint physical custody of the child.
39 (9) "Commit" means to transfer legal and physical custody.
40 (10) "Concurrent planning" means a planning model that prepares for and
41 implements different outcomes at the same time.
42 (11) "Court" means district court or magistrate's division thereof, or if
43 the context requires, a magistrate or judge thereof.
44 (12) "Custodian" means a person, other than a parent or legal guardian, to
45 whom legal or joint legal custody of the child has been given by court order
46 or who is acting in loco parentis.
47 (13) "Department" means the department of health and welfare and its
48 authorized representatives.
49 (14) "Disability" means, with respect to an individual, any mental or
50 physical impairment which substantially limits one (1) or more major life
51 activity of the individual including, but not limited to, self-care, manual
52 tasks, walking, seeing, hearing, speaking, learning or working, or a record of
53 such an impairment, or being regarded as having such an impairment. Disability
54 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
55 voyeurism, other sexual behavior disorders, or substance use disorders, com-
3
1 pulsive gambling, kleptomania or pyromania. Sexual preference or orientation
2 is not considered an impairment or disability. Whether an impairment substan-
3 tially limits a major life activity shall be determined without consideration
4 of the effect of corrective or mitigating measures used to reduce the effects
5 of the impairment.
6 (15) "Family or household member" shall have the same meaning as in sec-
7 tion 39-6303(3), Idaho Code.
8 (16) "Foster care" means twenty-four (24) hour substitute care for chil-
9 dren placed away from their parents or guardians and for whom the state agency
10 has placement and care responsibility.
11 (17) "Grant administrator" means any such organization or agency as may be
12 designated by the supreme court from time to time to administer funds from the
13 guardian ad litem account in accordance with the provisions of this chapter.
14 (18) "Guardian ad litem" means a person appointed by the court pursuant to
15 a guardian ad litem volunteer program to act as special advocate for a child
16 under this chapter.
17 (19) "Guardian ad litem program" means the program to recruit, train and
18 coordinate volunteer persons to serve as guardians ad litem for abused,
19 neglected or abandoned children.
20 (20) "Homeless," as used in this chapter, shall mean that the child is
21 without adequate shelter or other living facilities, and the lack of such
22 shelter or other living facilities poses a threat to the health, safety or
23 well-being of the child.
24 (21) "Law enforcement agency" means a city police department, the prose-
25 cuting attorney of any county, state law enforcement officers, or the office
26 of a sheriff of any county.
27 (22) "Legal custody" means a relationship created by order of the court,
28 which vests in a custodian the following duties and rights:
29 (a) To have physical custody and control of the child, and to determine
30 where and with whom the child shall live.
31 (b) To supply the child with food, clothing, shelter and incidental
32 necessities.
33 (c) To provide the child with care, education and discipline.
34 (d) To authorize ordinary medical, dental, psychiatric, psychological, or
35 other remedial care and treatment for the child, including care and treat-
36 ment in a facility with a program of services for children; and to autho-
37 rize surgery if the surgery is deemed by two (2) physicians licensed to
38 practice in this state to be necessary for the child.
39 (e) Where the parents share legal custody, the custodian may be vested
40 with the custody previously held by either or both parents.
41 (23) "Mental injury" means a substantial impairment in the intellectual or
42 psychological ability of a child to function within a normal range of perfor-
43 mance and/or behavior, for short or long terms.
44 (24) "Neglected" means a child:
45 (a) Who is without proper parental care and control, or subsistence, edu-
46 cation, medical or other care or control necessary for his well-being
47 because of the conduct or omission of his parents, guardian or other cus-
48 todian or their neglect or refusal to provide them; provided, however, no
49 child whose parent or guardian chooses for such child treatment by prayers
50 through spiritual means alone in lieu of medical treatment, shall be
51 deemed for that reason alone to be neglected or lack parental care neces-
52 sary for his health and well-being, but further provided this subsection
53 shall not prevent the court from acting pursuant to section 16-1616, Idaho
54 Code; or
55 (b) Whose parents, guardian or other custodian are unable to discharge
4
1 their responsibilities to and for the child and, as a result of such
2 inability, the child lacks the parental care necessary for his health,
3 safety or well-being; or
4 (c) Who has been placed for care or adoption in violation of law.
5 (25) "Permanency hearing" means a hearing to review, approve, reject or
6 modify the permanency plan of the department, and review reasonable efforts in
7 accomplishing the permanency plan.
8 (26) "Permanency plan" means a plan for a continuous residence and mainte-
9 nance of nurturing relationships during the child's minority.
10 (27) "Planning hearing" means a hearing to:
11 (a) Review, approve, modify or reject the case plan; and
12 (b) Review reasonable efforts being made to rehabilitate the family; and
13 (c) Review reasonable efforts being made to reunify the children with a
14 parent or guardian.
15 (28) "Protective order" means an order created by the court granting
16 relief as delineated in section 39-6306, Idaho Code, and shall be for a period
17 not to exceed three (3) months unless otherwise stated herein. Failure to com-
18 ply with the order shall be a misdemeanor.
19 (29) "Protective supervision" means a legal status created by court order
20 in neglect and abuse cases whereby the child is permitted to remain in his
21 home under supervision by the department.
22 (30) "Residual parental rights and responsibilities" means those rights
23 and responsibilities remaining with the parents after the transfer of legal
24 custody including, but not necessarily limited to, the right of visitation,
25 the right to consent to adoption, the right to determine religious affilia-
26 tion, the right to family counseling when beneficial, and the responsibility
27 for support.
28 (31) "Shelter care" means places designated by the department for tempo-
29 rary care of children pending court disposition or placement.
30 (32) "Supportive services," as used in this chapter, shall mean services
31 which assist parents with a disability to compensate for those aspects of
32 their disability which affect their ability to care for their child and which
33 will enable them to discharge their parental responsibilities. The term
34 includes specialized or adapted training, evaluations or assistance with
35 effectively using adaptive equipment and accommodations which allow parents
36 with a disability to benefit from other services including, but not limited
37 to, Braille texts or sign language interpreters.
38 SECTION 2. That Section 16-2002, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 16-2002. DEFINITIONS. When used in this act, unless the text otherwise
41 requires:
42 a. "Court" means the district court.
43 b. "Child" or "minor" means a person less than eighteen (18) years of
44 age.
45 c. The singular includes the plural, the plural the singular, and the
46 masculine the feminine, when consistent with the intent of the act.
47 d. "Neglected" used with respect to a child refers to those situations in
48 which the child lacks proper support or parental care necessary for his
49 health, morals, and well-being.
50 e. "Abuse" used with respect to a child refers to those situations in
51 which physical cruelty in excess of that required for reasonable disciplinary
52 purposes has been inflicted by a parent or other person in whom legal custody
53 of the child has been vested.
5
1 f. "Legal custody" means status created by court order embodying the fol-
2 lowing rights and responsibilities:
3 (1) The right to physical possession of the child;
4 (2) The right and duty to protect, train and discipline the child; and
5 (3) The responsibility to provide the child with food, shelter, education
6 and medical care;
7 provided that such rights and responsibilities shall be exercised subject to
8 the powers, rights, duties and responsibilities of the guardian of the person.
9 g. "Guardianship of the person" means those rights and duties imposed
10 upon a person appointed as guardian of a minor under the laws of Idaho. It
11 includes but is not necessarily limited either in number or kind to:
12 (1) The authority to consent to marriage, to enlistment in the armed
13 forces of the United States, and to major medical, psychiatric and surgi-
14 cal treatment; to represent the minor in legal actions; and to make other
15 decisions concerning the child of substantial legal significance;
16 (2) The authority and duty of reasonable visitation, except to the extent
17 that such right of visitation has been limited by court order;
18 (3) The rights and responsibilities of legal custody except where legal
19 custody has been vested in another individual or in an authorized child
20 placement agency;
21 (4) When the parent and child relationship has been terminated by judi-
22 cial decree with respect to the parents, or only living parent, or when
23 there is no living parent, the authority to consent to the adoption of the
24 child and to make any other decision concerning the child which the
25 child's parents could make.
26 h. "Guardian ad litem" means a person appointed as such pursuant to law,
27 by the court to protect the interest of a minor or an incompetent in a case
28 before the court.
29 i. "Authorized agency" means the state department of health and welfare
30 or a voluntary child placement agency licensed to care for and place children
31 by the state department of health and welfare.
32 j. "Parent" means:
33 (1) The birth mother or the adoptive mother;
34 (2) The adoptive father;
35 (3) The biological father of a child conceived or born during the
36 father's marriage to the birth mother;
37 (4) The unmarried biological father whose consent to an adoption of the
38 child is required pursuant to section 16-1504, Idaho Code;
39 (5) A man whose paternity is established by court decree; and
40 (6) An unmarried biological father who has filed a voluntary acknowledg-
41 ment of paternity with the vital statistics unit of the department of
42 health and welfare pursuant to section 7-1106, Idaho Code; and
43 (7) The father of an illegitimate child who has adopted the child by
44 acknowledgment pursuant to section 16-1510, Idaho Code.
45 k. "Presumptive father" means a man who is or was married to the birth
46 mother and the child is born during the marriage or within three hundred (300)
47 days after the marriage is terminated.
48 l. "Parent and child relationship" includes all rights, privileges,
49 duties and obligations existing between parent and child, including inheri-
50 tance rights, and shall be construed to include adoptive parents.
51 m. "Protective supervision" means a legal status created by court order
52 in proceedings not involving violations of the law but where the legal custody
53 of the child is subject to change, whereby the child is permitted to remain in
54 his home under the supervision of an authorized agency designated by the court
55 and is subject to return to the court during the period of protective supervi-
6
1 sion.
2 n. "Parties" includes the child and the petitioners.
3 o. "Rape," (18-6101, Idaho Code); "statutory rape," (18-6111, Idaho
4 Code); "lewd conduct with a minor child under sixteen," (18-1508, Idaho Code);
5 "sexual abuse of a child under the age of sixteen years," (18-1506, Idaho
6 Code); and "incest" (18-6602, Idaho Code) shall be defined as provided in the
7 applicable provisions of title 18, Idaho Code, but for purposes of this chap-
8 ter shall not include any circumstance where the parents of the child in ques-
9 tion were married at the time of conception.
10 p. "Unmarried biological father," as used in this chapter and chapter 15,
11 title 16, Idaho Code, means the biological father of a child, which biological
12 father was not married to the child's mother at the time the child was con-
13 ceived or born.
14 q. "Unmarried biological mother," as used in this chapter, means the bio-
15 logical mother of a child, which biological mother was not married to the
16 child's biological father at the time the child was conceived or born.
17 r. "Disability" means, with respect to an individual, any mental or phys-
18 ical impairment which substantially limits one (1) or more major life activi-
19 ties of the individual including, but not limited to, self-care, manual tasks,
20 walking, seeing, hearing, speaking, learning, or working, or a record of such
21 an impairment, or being regarded as having such an impairment. Disability
22 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
23 voyeurism, other sexual behavior disorders, or substance use disorders, com-
24 pulsive gambling, kleptomania, or pyromania. Sexual preference or orientation
25 is not considered an impairment or disability. Whether an impairment substan-
26 tially limits a major life activity shall be determined without consideration
27 of the effect of corrective or mitigating measures used to reduce the effects
28 of the impairment.
29 s. "Adaptive equipment" means any piece of equipment or any item that is
30 used to increase, maintain, or improve the parenting abilities of a parent
31 with a disability.
32 t. "Supportive services" means services which assist a parent with a dis-
33 ability to compensate for those aspects of their disability which affect their
34 ability to care for their child and which will enable them to discharge their
35 parental responsibilities. The term includes specialized or adapted training,
36 evaluations, or assistance with effective use of adaptive equipment, and
37 accommodations which allow a parent with a disability to benefit from other
38 services, such as Braille texts or sign language interpreters.
39 SECTION 3. That Section 16-2005, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 16-2005. CONDITIONS UNDER WHICH TERMINATION MAY BE GRANTED. The court may
42 grant an order terminating the relationship where it finds one (1) or more of
43 the following conditions exist:
44 a. The parent has abandoned the child by having willfully failed to main-
45 tain a normal parental relationship including, but not limited to, reasonable
46 support or regular personal contact; failure of the parent to maintain this
47 relationship without just cause for a period of one (1) year shall constitute
48 prima facie evidence of abandonment under this section. Provided further, that
49 where termination is sought by a grandparent seeking to adopt the child, will-
50 ful failure of the parent to maintain a normal parental relationship as pro-
51 vided herein, without just cause, for six (6) months shall constitute prima
52 facie evidence of abandonment.
53 b. The parent has neglected or abused the child. Neglect as used herein
7
1 shall mean a situation in which the child lacks parental care necessary for
2 his health, morals and well-being.
3 c. The presumptive parent is not the natural parent of the child.
4 d. The parent is unable to discharge parental responsibilities and such
5 inability will continue for a prolonged indeterminate period and will be inju-
6 rious to the health, morals or well-being of the child.
7 e. If termination is found to be in the best interest of the parent and
8 child, where the petition has been filed by a parent or through an authorized
9 agency, or interested party.
10 f. Where a consent to termination in the manner and form prescribed by
11 this act has been filed by the parent(s) of the child in conjunction with a
12 petition for adoption initiated by the person or persons proposing to adopt
13 the child, or where the consent to termination has been filed by a licensed
14 adoption agency, no subsequent hearing on the merits of the petition shall be
15 held. Consents required by this act must be witnessed by a district judge or
16 magistrate of a district court, or equivalent judicial officer of the state,
17 where a person consenting resides or is present, whether within or without the
18 county, and shall be substantially in the following form:
19 IN THE DISTRICT COURT OF THE .... JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN
20 AND FOR THE COUNTY OF ....
21 In the Matter of the termination )
22 of the parental rights of )
23 ................... )
24 ................... )
25 I (we), the undersigned, being the .... of ...., do hereby give my (our)
26 full and free consent to the complete and absolute termination of my (our)
27 parental right(s), to the said ...., who was born ...., ...., unto ....,
28 hereby relinquishing completely and forever, all legal rights, privileges,
29 duties and obligations, including all rights of inheritance to and from the
30 said ...., and I (we) do hereby expressly waive my (our) right(s) to hearing
31 on the petition to terminate my (our) parental relationship with the said
32 ...., and respectfully request the petition be granted.
33 DATED: ...., 20..
34 .................
35 STATE OF IDAHO )
36 ) ss.
37 COUNTY OF .... )
38 On this .... day of ...., 20.., before me, the undersigned ...., ....
39 (Judge or Magistrate) of the District Court of the .... Judicial District of
40 the state of Idaho, in and for the county of ...., personally appeared ....,
41 known to me (or proved to me on the oath of ....) to be the person(s) whose
42 name(s) is (are) subscribed to the within instrument, and acknowledged to me
43 that he (she, they) executed the same.
44 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
45 seal the day and year in this certificate first above written.
46 ...................... (District Judge or Magistrate)
47 The court shall accept a consent or a surrender and release executed in
48 another state if:
49 (1) It is witnessed by a magistrate or district judge of the state where
50 signed; or
51 (2) The court receives an affidavit or a certificate from a court of com-
52 parable jurisdiction stating that the consent or the surrender and release
53 was executed in accordance with the laws of the state in which it was exe-
54 cuted, or the court is satisfied by other showing that the consent or sur-
55 render and release was executed in accordance with the laws of the state
8
1 in which it was executed; or
2 (3) The court shall accept a termination or relinquishment from a sister
3 state that has been ordered by a court of competent jurisdiction under
4 like proceedings; or in any other manner authorized by the laws of a sis-
5 ter state. In a state where the father has failed to file notice of claim
6 to paternity and willingness to assume responsibility as provided for pur-
7 suant to the laws of such state, and where such failure constitutes an
8 abandonment of such child and constitutes a termination or relinquishment
9 of the rights of the putative father, the court shall accept such failure
10 as a termination in this state without further hearing on the merits, if
11 the court is satisfied that such failure constitutes a termination or
12 relinquishment of parental rights pursuant to the laws of that state.
13 g. Unless a consent to termination signed by the parent(s) of the child
14 has been filed by an adoption agency licensed in the state of Idaho, or unless
15 the consent to termination was filed in conjunction with a petition for adop-
16 tion of the child, the court shall hold a hearing.
17 h. The court may grant termination as to a parent:
18 (1) Who caused the child to be conceived as a result of rape, statutory
19 rape, incest, lewd conduct with a minor child under sixteen (16) years, or
20 sexual abuse of a child under the age of sixteen (16) years, as defined in
21 section 16-2002 o., Idaho Code; or
22 (2) Who murdered or intentionally killed the other parent of the child;
23 or if the court determines the parent has been convicted of murder or vol-
24 untary manslaughter of another sibling of the child or has aided, abetted,
25 conspired or solicited to commit such murder or voluntary manslaughter
26 and/or if the court determines the parent has been convicted of a felony
27 assault or battery which resulted in serious bodily injury to the child or
28 a sibling; or
29 (3) Who has been incarcerated and has no possibility of parole; or
30 (4) If a court determines the child to be an abandoned infant.
31 There is a rebuttable presumption that termination of the parent-child rela-
32 tionship in any of the circumstances provided in subsection g. of this section
33 is in the best interest of the child.
34 i. If the parent has a disability, as defined in this chapter, the parent
35 shall have the right to provide evidence to the court regarding the manner in
36 which the use of adaptive equipment or supportive services will enable the
37 parent to carry out the responsibilities of parenting the child. Nothing in
38 this section shall be construed to create any new or additional obligation on
39 state or local governments to purchase or provide adaptive equipment or sup-
40 portive services for parents with disabilities.
41 SECTION 4. That Section 18-310, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 18-310. IMPRISONMENT -- EFFECT ON CIVIL RIGHTS AND OFFICES. (1) A sen-
44 tence of custody to the Idaho state board of correction suspends all the civil
45 rights of the person so sentenced including the right to refuse treatment
46 authorized by the sentencing court, and forfeits all public offices and all
47 private trusts, authority or power during such imprisonment: provided that any
48 such person may bring an action for damages or other relief in the courts of
49 this state or have an action brought against such person; and provided further
50 that any such person may lawfully exercise all civil rights that are not
51 political during any period of parole or probation, except the right to ship,
52 transport, possess or receive a firearm, and the right to refuse treatment
53 authorized by the sentencing court.
9
1 (2) Upon final discharge, a person convicted of any Idaho felony shall be
2 restored the full rights of citizenship, except that for persons convicted of
3 treason or those offenses enumerated in paragraphs (a) through (jjkk) of this
4 subsection the right to ship, transport, possess or receive a firearm shall
5 not be restored. As used in this subsection, "final discharge" means satisfac-
6 tory completion of imprisonment, probation and parole as the case may be.
7 (a) aggravated assault (18-905, 18-915, Idaho Code);
8 (b) aggravated battery (18-907, 18-915, Idaho Code);
9 (c) assault with intent to commit a serious felony (18-909, 18-915, Idaho
10 Code);
11 (d) battery with intent to commit a serious felony (18-911, 18-915, Idaho
12 Code);
13 (e) burglary (18-1401, Idaho Code);
14 (f) crime against nature (18-6605, Idaho Code);
15 (g) domestic battery, felony (18-918, Idaho Code);
16 (h) enticing of children, felony (18-1509, Idaho Code);
17 (i) forcible sexual penetration by use of a foreign object (18-6608,
18 Idaho Code);
19 (j) indecent exposure, felony (18-4116, Idaho Code);
20 (k) injury to child, felony (18-1501, Idaho Code);
21 (l) intimidating a witness, felony (18-2604, Idaho Code);
22 (m) lewd conduct with a minor or child under sixteen (18-1508, Idaho
23 Code);
24 (n) sexual abuse of a child under sixteen (18-1506, Idaho Code);
25 (o) sexual exploitation of a child (18-1507, Idaho Code);
26 (p) felonious rescuing prisoners (18-2501, Idaho Code);
27 (q) escape by one charged with, convicted of or on probation for a felony
28 (18-2505, Idaho Code);
29 (r) unlawful possession of a firearm (18-3316, Idaho Code);
30 (s) degrees of murder (18-4003, Idaho Code);
31 (t) voluntary manslaughter (18-4006(1), Idaho Code);
32 (u) assault with intent to murder (18-4015, Idaho Code);
33 (v) administering poison with intent to kill (18-4014, Idaho Code);
34 (w) kidnapping (18-4501, Idaho Code);
35 (x) mayhem (18-5001, Idaho Code);
36 (y) rape (18-6101, Idaho Code);
37 (z) male rape (18-6108, Idaho Code);
38 (aa) statutory rape (18-6111, Idaho Code);
39 (bb) robbery (18-6501, Idaho Code);
40 (bbcc) ritualized abuse of a child (18-1506A, Idaho Code);
41 (ccdd) cannibalism (18-5003, Idaho Code);
42 (ddee) felonious manufacture, delivery or possession with the intent to
43 manufacture or deliver, or possession of a controlled or counterfeit sub-
44 stance (37-2732, Idaho Code);
45 (eeff) trafficking (37-2732B, Idaho Code);
46 (ffgg) threats against state officials of the executive, legislative or
47 judicial branch, felony (18-1353A, Idaho Code);
48 (gghh) unlawful discharge of a firearm at a dwelling house, occupied
49 building, vehicle or mobile home (18-3317, Idaho Code);
50 (hhii) unlawful possession of destructive devices (18-3319, Idaho Code);
51 (iijj) unlawful use of destructive device or bomb (18-3320, Idaho Code);
52 (jjkk) attempt (18-306, Idaho Code), conspiracy (18-1701, Idaho Code), or
53 solicitation (18-2001, Idaho Code), to commit any of the crimes described
54 in paragraphs (a) through (iijj) of this subsection.
55 (kkll) The provisions of this subsection shall apply only to those persons
10
1 convicted of the enumerated felonies in paragraphs (a) through (jjkk) of
2 this subsection on or after July 1, 1991, except that persons convicted of
3 the felonies enumerated in paragraphs (s) and (t) of this subsection, for
4 any degree of murder or voluntary manslaughter, shall not be restored the
5 right to ship, transport, possess or receive a firearm regardless of the
6 date of their conviction if the conviction was the result of an offense
7 committed by use of a firearm.
8 (3) A person not restored to the civil right to ship, transport, possess
9 or receive a firearm may make application to the commission of pardons and
10 parole to restore the civil right to ship, transport, possess or receive a
11 firearm. The commission shall not accept any such application until five (5)
12 years after the date of final discharge. The commission shall conduct the pro-
13 ceeding upon such application pursuant to rules adopted in accordance with the
14 law. The commission shall not restore the right to ship, transport, possess or
15 receive a firearm to any person convicted of murder in the first degree
16 (18-4003, Idaho Code), murder in the second degree (18-4003, Idaho Code), or
17 any felony enumerated in paragraphs (a) through (jjkk) of subsection (2) of
18 this section, upon which the sentence was enhanced for the use of a firearm
19 during the commission of said felony.
20 SECTION 5. That Section 18-608, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-608. CERTAIN ABORTIONS PERMITTED -- CONDITIONS AND GUIDELINES. The
23 provisions of sections 18-605 and 18-606, Idaho Code, shall not apply to and
24 neither this act, nor other controlling rule of Idaho law, shall be deemed to
25 make unlawful an abortion performed by a physician if:
26 (1) When performed upon a woman who is in the first trimester of preg-
27 nancy, the same is performed following the attending physician's consultation
28 with the pregnant patient and a determination by the physician that such abor-
29 tion is appropriate in consideration of such factors as in his medical judg-
30 ment he deems pertinent, including, but not limited to, physical, emotional,
31 psychological and/or familial factors, that the child would be born with some
32 physical or mental defect, that the pregnancy resulted from rape, statutory
33 rape, incest or other felonious intercourse, and a legal presumption is hereby
34 created that all illicit intercourse with a girl below the age of sixteen (16)
35 years shall be deemed felonious for purposes of this section, the patient's
36 age and any other consideration relevant to her well-being or directly or
37 otherwise bearing on her health and, in addition to medically diagnosable mat-
38 ters, including, but not limited to, such factors as the potential stigma of
39 unwed motherhood, the imminence of psychological harm or stress upon the men-
40 tal and physical health of the patient, the potential stress upon all con-
41 cerned of an unwanted child or a child brought into a family already unable,
42 psychologically or otherwise, to care for it, and/or the opinion of the
43 patient that maternity or additional offspring probably will force upon her a
44 distressful life and future; the emotional or psychological consequences of
45 not allowing the pregnancy to continue, and the aid and assistance available
46 to the pregnant patient if the pregnancy is allowed to continue; provided, in
47 consideration of all such factors, the physician may rely upon the statements
48 of and the positions taken by the pregnant patient, and the physician shall
49 not be deemed to have held himself out as possessing special expertise in such
50 matters nor shall he be held liable, civilly or otherwise, on account of his
51 good faith exercise of his medical judgment, whether or not influenced by any
52 such nonmedical factors. Abortions permitted by this subsection shall only be
53 lawful if and when performed in a hospital or in a physician's regular office
11
1 or a clinic which office or clinic is properly staffed and equipped for the
2 performance of such procedures and respecting which the responsible physician
3 or physicians have made satisfactory arrangements with one (1) or more acute
4 care hospitals within reasonable proximity thereof providing for the prompt
5 availability of hospital care as may be required due to complications or emer-
6 gencies that might arise.
7 (2) When performed upon a woman who is in the second trimester of preg-
8 nancy, the same is performed in a hospital and is, in the judgment of the
9 attending physician, in the best medical interest of such pregnant woman, con-
10 sidering those factors enumerated in subsection (1) of this section and such
11 other factors as the physician deems pertinent.
12 (3) When performed upon a woman who is in the third trimester of preg-
13 nancy the same is performed in a hospital and, in the judgment of the attend-
14 ing physician, corroborated by a like opinion of a consulting physician con-
15 curring therewith, either is necessary for the preservation of the life of
16 such woman or, if not performed, such pregnancy would terminate in birth or
17 delivery of a fetus unable to survive. Third trimester abortions undertaken
18 for preservation of the life of a pregnant patient, as permitted by this sub-
19 section, shall, consistent with accepted medical practice and with the well-
20 being and safety of such patient, be performed in a manner consistent with
21 preservation of any reasonable potential for survival of a viable fetus.
22 SECTION 6. That Section 18-909, Idaho Code, be, and the same is hereby
23 amended to read as follows:
24 18-909. ASSAULT WITH INTENT TO COMMIT A SERIOUS FELONY DEFINED. An
25 assault upon another with intent to commit murder, rape, statutory rape, the
26 infamous crime against nature, mayhem, robbery, or lewd and lascivious conduct
27 with a minor child is an assault with the intent to commit a serious felony.
28 SECTION 7. That Section 18-911, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 18-911. BATTERY WITH THE INTENT TO COMMIT A SERIOUS FELONY DEFINED. Any
31 battery committed with the intent to commit murder, rape, statutory rape, the
32 infamous crime against nature, mayhem, robbery or lewd and lascivious conduct
33 with a minor child is a battery with the intent to commit a serious felony.
34 SECTION 8. That Section 18-4003, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 18-4003. DEGREES OF MURDER. (a) All murder which is perpetrated by means
37 of poison, or lying in wait, or torture, when torture is inflicted with the
38 intent to cause suffering, to execute vengeance, to extort something from the
39 victim, or to satisfy some sadistic inclination, or which is perpetrated by
40 any kind of willful, deliberate and premeditated killing is murder of the
41 first degree.
42 (b) Any murder of any peace officer, executive officer, officer of the
43 court, fireman, judicial officer or prosecuting attorney who was acting in the
44 lawful discharge of an official duty, and was known or should have been known
45 by the perpetrator of the murder to be an officer so acting, shall be murder
46 of the first degree.
47 (c) Any murder committed by a person under a sentence for murder of the
48 first or second degree, including such persons on parole or probation from
49 such sentence, shall be murder of the first degree.
12
1 (d) Any murder committed in the perpetration of, or attempt to perpe-
2 trate, aggravated battery on a child under twelve (12) years of age, arson,
3 rape, statutory rape, robbery, burglary, kidnapping or mayhem, or an act of
4 terrorism, as defined in section 18-8102, Idaho Code, or the use of a weapon
5 of mass destruction, biological weapon or chemical weapon, is murder of the
6 first degree.
7 (e) Any murder committed by a person incarcerated in a penal institution
8 upon a person employed by the penal institution, another inmate of the penal
9 institution or a visitor to the penal institution shall be murder of the first
10 degree.
11 (f) Any murder committed by a person while escaping or attempting to
12 escape from a penal institution is murder of the first degree.
13 (g) All other kinds of murder are of the second degree.
14 SECTION 9. That Section 18-4006, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 18-4006. MANSLAUGHTER DEFINED. Manslaughter is the unlawful killing of a
17 human being including, but not limited to, a human embryo or fetus, without
18 malice. It is of three (3) kinds:
19 1. Voluntary -- upon a sudden quarrel or heat of passion.
20 2. Involuntary -- in the perpetration of or attempt to perpetrate any
21 unlawful act, other than arson, rape, statutory rape, robbery, kidnapping,
22 burglary, or mayhem; or in the commission of a lawful act which might produce
23 death, in an unlawful manner, or without due caution and circumspection; or in
24 the operation of any firearm or deadly weapon in a reckless, careless or neg-
25 ligent manner which produces death.
26 3. Vehicular -- in which the operation of a motor vehicle is a signifi-
27 cant cause contributing to the death because of:
28 (a) the commission of an unlawful act, not amounting to a felony, with
29 gross negligence; or
30 (b) the commission of a violation of section 18-8004 or 18-8006, Idaho
31 Code; or
32 (c) the commission of an unlawful act, not amounting to a felony, without
33 gross negligence.
34 Notwithstanding any other provision of law, any evidence of conviction
35 under subsection 3.(b) shall be admissible in any civil action for damages
36 resulting from the occurrence. A conviction for the purposes of subsection
37 3.(b) means that the person has pled guilty or has been found guilty, notwith-
38 standing the form of the judgment(s) or withheld judgment(s).
39 SECTION 10. That Section 18-4502, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 18-4502. FIRST DEGREE KIDNAPPING -- RANSOM. Any kidnapping committed for
42 the purpose of obtaining money, property or any other thing of value for the
43 return or disposition of such person kidnapped, or committed for the purpose
44 of raping, committing statutory rape or committing the infamous crime against
45 nature, or committing serious bodily injury upon the person kidnapped, or com-
46 mitting any lewd and lascivious act upon any child under the age of sixteen
47 (16) years with the intent of arousing, appealing to, or gratifying the lust
48 or passions or sexual desires of any person, shall be kidnapping in the first
49 degree.
50 SECTION 11. That Section 18-6101, Idaho Code, be, and the same is hereby
13
1 amended to read as follows:
2 18-6101. RAPE DEFINED. Rape is defined as the penetration, however
3 slight, of the oral, anal or vaginal opening with the perpetrator's penis
4 accomplished with a female under any one (1) of the following circumstances:
5 1. Where the female is under the age of eighteen (18) years.
6 2.(1) Where she the female is incapable, through any unsoundness of mind,
7 due to any cause including, but not limited to, mental illness, mental defi-
8 ciency or developmental disability, whether temporary or permanent, of giving
9 legal consent.
10 3.(2) Where she resists but her resistance is overcome by force or vio-
11 lence.
12 4.(3) Where she is prevented from resistance by the infliction, attempted
13 infliction, or threatened infliction of bodily harm, accompanied by apparent
14 power of execution; or is unable to resist due to any intoxicating, narcotic,
15 or anaesthetic substance.
16 5.(4) Where she is at the time unconscious of the nature of the act. As
17 used in this section, "unconscious of the nature of the act" means incapable
18 of resisting because the victim meets one (1) of the following conditions:
19 (a) Was unconscious or asleep;
20 (b) Was not aware, knowing, perceiving, or cognizant that the act
21 occurred.
22 6.(5) Where she submits under the belief that the person committing the
23 act is her husband, and the belief is induced by artifice, pretense or con-
24 cealment practiced by the accused, with intent to induce such belief.
25 7.(6) Where she submits under the belief, instilled by the actor, that if
26 she does not submit, the actor will cause physical harm to some person in the
27 future; or cause damage to property; or engage in other conduct constituting a
28 crime; or accuse any person of a crime or cause criminal charges to be insti-
29 tuted against her; or expose a secret or publicize an asserted fact, whether
30 true or false, tending to subject any person to hatred, contempt or ridicule.
31 SECTION 12. That Section 18-6102, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 18-6102. PROOF OF PHYSICAL ABILITY. No conviction for rape or statutory
34 rape can be had against one who was under the age of fourteen (14) years at
35 the time of the act alleged, unless his physical ability to accomplish pene-
36 tration is proved as an independent fact, and beyond a reasonable doubt.
37 SECTION 13. That Section 18-6103, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 18-6103. PENETRATION. The essential guilt of rape or statutory rape con-
40 sists in the outrage to the person and feelings of the female. Any sexual pen-
41 etration, however slight, is sufficient to complete the crime.
42 SECTION 14. That Section 18-6105, Idaho Code, be, and the same is hereby
43 amended to read as follows:
44 18-6105. EVIDENCE OF PREVIOUS SEXUAL CONDUCT OF PROSECUTING WITNESS. In
45 prosecutions for the crime of rape or statutory rape, evidence of the prose-
46 cuting witness' previous sexual conduct shall not be admitted nor reference
47 made thereto in the presence of the jury, except as provided hereinafter. The
48 defendant may make application to the court before or during the trial for the
14
1 admission of evidence concerning the previous sexual conduct of the prosecut-
2 ing witness. Upon such application the court shall conduct a hearing out of
3 the presence of the jury as to the relevancy of such evidence of previous sex-
4 ual conduct and shall limit the questioning and control the admission and
5 exclusion of evidence upon trial. Nothing in this section shall limit the
6 right of either the state or the accused to impeach credibility by the showing
7 of prior felony convictions.
8 SECTION 15. That Section 18-6107, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 18-6107. RAPE OF SPOUSE. No person shall be convicted of rape for any act
11 or acts with that person's spouse, except under the circumstances cited in
12 paragraphs 3. subsections (2) and 4. (3) of section 18-6101, Idaho Code.
13 SECTION 16. That Chapter 61, Title 18, Idaho Code, be, and the same is
14 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
15 ignated as Section 18-6111, Idaho Code, and to read as follows:
16 18-6111. STATUTORY RAPE. (1) Statutory rape is defined as the penetra-
17 tion, however slight, of the oral, anal or vaginal opening with the
18 perpetrator's penis accomplished with a female where:
19 (a) The female is under the age of sixteen (16) years; or
20 (b) The female is sixteen (16) or seventeen (17) years of age and the
21 perpetrator is three (3) or more years older than the female.
22 (2) Statutory rape is punishable by imprisonment in the state prison for
23 not less than one (1) year, and the imprisonment may be extended to life.
24 SECTION 17. That Section 18-8303, Idaho Code, be, and the same is hereby
25 amended to read as follows:
26 18-8303. DEFINITIONS. As used in this chapter:
27 (1) "Aggravated offense" means any of the following crimes as set forth
28 in section 18-8304, Idaho Code: 18-1508 (lewd conduct, when the victim is less
29 than twelve (12) years of age); 18-4003(d) (murder committed in the perpetra-
30 tion of rape); 18-6101 (rape, but excluding section 18-6101(1) where the vic-
31 tim is at least twelve (12) years of age or the defendant is eighteen (18)
32 years of age or younger); 18-6108 (male rape); 18-6111 (statutory rape, except
33 where the victim is at least twelve (12) years of age or the defendant is
34 eighteen (18) years of age or younger at the time of the offense); and 18-6608
35 (forcible sexual penetration by use of a foreign object).
36 (2) "Board" means the sexual offender classification board described in
37 section 18-8312, Idaho Code.
38 (3) "Central registry" means the registry of convicted sexual offenders
39 maintained by the Idaho state police pursuant to this chapter.
40 (4) "Certified evaluator" means either a psychiatrist licensed by this
41 state pursuant to chapter 18, title 54, Idaho Code, or a master's or doctoral
42 level mental health professional licensed by this state pursuant to chapter
43 23, chapter 32, or chapter 34, title 54, Idaho Code. Such person shall have by
44 education, experience and training, expertise in the assessment and treatment
45 of sexual offenders, and such person shall meet the qualifications and shall
46 be approved by the board to perform psychosexual evaluations in this state, as
47 described in section 18-8314, Idaho Code.
48 (5) "Department" means the Idaho state police.
49 (6) "Employed" means full-time or part-time employment exceeding ten (10)
15
1 consecutive working days or for an aggregate period exceeding thirty (30) days
2 in any calendar year, or any employment which involves counseling, coaching,
3 teaching, supervising or working with minors in any way regardless of the
4 period of employment, whether such employment is financially compensated, vol-
5 unteered or performed for the purpose of any government or education benefit.
6 (7) "Incarceration" means committed to the custody of the Idaho depart-
7 ment of correction, but excluding cases where the court has retained jurisdic-
8 tion.
9 (8) "Offender" means an individual convicted of an offense listed and
10 described in section 18-8304, Idaho Code, or a substantially similar offense
11 under the laws of another state or in a federal, tribal or military court or
12 the court of another country.
13 (9) "Offense" means a sexual offense listed in section 18-8304, Idaho
14 Code.
15 (10) "Predatory" means actions directed at an individual who was selected
16 by the offender for the primary purpose of engaging in illegal sexual behav-
17 ior.
18 (11) "Psychosexual evaluation" means an evaluation which specifically
19 addresses sexual development, sexual deviancy, sexual history and risk of
20 reoffense as part of a comprehensive evaluation of an offender.
21 (12) "Recidivist" means an individual convicted two (2) or more times of
22 any offense requiring registration under this chapter.
23 (13) "Residence" means the offender's present place of abode.
24 (14) "Student" means a person who is enrolled on a full-time or part-time
25 basis, in any public or private educational institution, including any second-
26 ary school, trade or professional institution or institution of higher educa-
27 tion.
28 (15) "Violent sexual predator" means a person who has been convicted of an
29 offense listed in section 18-8314, Idaho Code, and who has been determined to
30 pose a risk of committing an offense or engaging in predatory sexual conduct.
31 SECTION 18. That Section 18-8304, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 18-8304. APPLICATION OF CHAPTER. (1) The provisions of this chapter shall
34 apply to any person who:
35 (a) On or after July 1, 1993, is convicted of the crime, or an attempt, a
36 solicitation, or a conspiracy to commit a crime provided for in section
37 18-909 (assault with attempt to commit rape, statutory rape, infamous
38 crime against nature, or lewd and lascivious conduct with a minor, but
39 excluding mayhem, murder or robbery), 18-911 (battery with attempt to com-
40 mit rape, statutory rape, infamous crime against nature, or lewd and las-
41 civious conduct with a minor, but excluding mayhem, murder or robbery),
42 18-1506 (sexual abuse of a child under sixteen years of age), 18-1506A
43 (ritualized abuse of a child), 18-1507 (sexual exploitation of a child),
44 18-1507A (possession of sexually exploitative material for other than a
45 commercial purpose), 18-1508 (lewd conduct with a minor child), 18-1508A
46 (sexual battery of a minor child sixteen or seventeen years of age),
47 18-1509A (enticing a child over the internet), 18-4003(d) (murder commit-
48 ted in perpetration of rape or statutory rape), 18-4116 (indecent expo-
49 sure, but excluding a misdemeanor conviction), 18-4502 (first degree kid-
50 napping committed for the purpose of rape, statutory rape, committing the
51 infamous crime against nature or for committing any lewd and lascivious
52 act upon any child under the age of sixteen, or for purposes of sexual
53 gratification or arousal), 18-4503 (second degree kidnapping where the
16
1 victim is an unrelated minor child), 18-6101 (rape, but excluding
2 18-6101(1) where the defendant is eighteen years of age or younger),
3 18-6108 (male rape), 18-6111 (statutory rape, except where the defendant
4 was eighteen years of age or younger at the time of the offense), 18-6602
5 (incest), 18-6605 (crime against nature), or 18-6608, Idaho Code (forcible
6 sexual penetration by use of a foreign object);
7 (b) Enters the state on or after July 1, 1993, and who has been convicted
8 of any crime, an attempt, a solicitation or a conspiracy to commit a crime
9 in another state, territory, commonwealth, or other jurisdiction of the
10 United States, including tribal courts and military courts, that is sub-
11 stantially equivalent to the offenses listed in subsection (1)(a) of this
12 section.
13 (c) Pleads guilty to or has been found guilty of a crime covered in this
14 chapter prior to July 1, 1993, and the person, as a result of the offense,
15 is incarcerated in a county jail facility or a penal facility or is under
16 probation or parole supervision, on or after July 1, 1993.
17 (d) Is a nonresident regularly employed or working in Idaho or is a stu-
18 dent in the state of Idaho and was convicted, found guilty or pleaded
19 guilty to a crime covered by this chapter and, as a result of such convic-
20 tion, finding or plea, is required to register in his state of residence.
21 (2) The provisions of this chapter shall not apply to any such person
22 while the person is incarcerated in a correctional institution of the depart-
23 ment of correction, a county jail facility or committed to a mental health
24 institution of the department of health and welfare.
25 (3) A conviction for purposes of this chapter means that the person has
26 pled guilty or has been found guilty, notwithstanding the form of the judgment
27 or withheld judgment.
28 SECTION 19. That Section 18-8314, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 18-8314. POWERS AND DUTIES OF THE SEXUAL OFFENDER CLASSIFICATION BOARD.
31 (1) The board shall review offenders scheduled for release from incarceration,
32 who were sentenced and convicted for one (1) or more of the crimes set forth
33 in sections 18-1506, 18-1506A, 18-1508, 18-4003(d), 18-4502, 18-6101, (but
34 excluding subsection 1. of such section when the offender is eighteen (18)
35 years of age or younger), 18-6108, 18-6111 (except where the offender was
36 eighteen (18) years of age or younger at the time of the offense), 18-6602,
37 18-6605 and 18-6608, Idaho Code, or are recidivists as defined in this chap-
38 ter, for the purpose of determining whether the offender should be designated
39 as a violent sexual predator presenting a high risk of reoffense.
40 (2) The board shall review offenders who were sentenced and convicted for
41 crimes enumerated in subsection (1) of this section and recidivists as defined
42 in this chapter, who have been released under supervision, for the purpose of
43 determining whether the offender should be designated as a violent sexual
44 predator presenting a high risk of reoffense. Such review shall be undertaken
45 upon request of the court having jurisdiction over the offender on probation
46 or of the parole commission if the offender has been released on parole
47 regardless of whether the offender has been reviewed by the board prior to
48 release from incarceration. For purposes of seeking a board review pursuant to
49 this subsection, the court or parole commission may consider all relevant evi-
50 dence including, but not limited to, the probation or parole official's obser-
51 vations and opinions of these offenders while under supervision, in light of
52 the circumstances of the underlying offense.
53 (3) The board shall by rule:
17
1 (a) Establish standards for psychosexual evaluations and the qualifica-
2 tions for certified evaluators performing evaluations pursuant to sections
3 18-8316 and 18-8317, Idaho Code.
4 (b) Set forth procedures for the approval, certification and quality
5 assurance of evaluators pursuant to this section.
6 (c) Establish a nonrefundable initial certification processing fee not to
7 exceed one hundred fifty dollars ($150) and a nonrefundable annual recer-
8 tification processing fee not to exceed one hundred fifty dollars ($150).
9 (4) The board shall establish guidelines to determine whether an offender
10 scheduled for release is a violent sexual predator presenting a high risk of
11 reoffense. The guidelines shall be established with the assistance of sexual
12 offender treatment and law enforcement professionals who have, by education,
13 experience or training, expertise in the assessment and treatment of sexual
14 offenders.
15 (a) Factors to be used in establishment of the guidelines must be sup-
16 ported in the sexual offender assessment field as criteria reasonably
17 related to the risk of reoffense and be objective criteria that can be
18 gathered in a consistent and reliable manner.
19 (b) The guidelines shall include, but are not limited to, the following
20 general categories for risk assessment: seriousness of the offense,
21 offense history, whether the offense was predatory, characteristics of the
22 offender, characteristics of the victim, the relationship of the offender
23 to the victim, the number of victims and the number of violations of each
24 victim.
25 (5) If the offender has indicated an intention to reoffend if released
26 into the community and the available record reveals credible evidence to sup-
27 port this finding, then the offender shall be deemed a violent sexual preda-
28 tor regardless of application of the guidelines.
29 (6) Once the board has made its determination, it shall set forth written
30 findings which shall include:
31 (a) The board's risk assessment and the reasons upon which the risk
32 assessment was based; and
33 (b) The board's determination whether the offender should be designated
34 as a violent sexual predator and the reasons upon which the determination
35 was based.
36 (7) The board shall have authority to promulgate rules to carry out the
37 provisions of this chapter.
38 SECTION 20. That Section 19-202A, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 19-202A. LEGAL JEOPARDY IN CASES OF SELF-DEFENSE AND DEFENSE OF OTHER
41 THREATENED PARTIES. No person in this state shall be placed in legal jeopardy
42 of any kind whatsoever for protecting himself or his family by reasonable
43 means necessary, or when coming to the aid of another whom he reasonably
44 believes to be in imminent danger of or the victim of aggravated assault, rob-
45 bery, rape, statutory rape, murder or other heinous crime.
46 SECTION 21. That Section 19-401, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 19-401. PROSECUTIONS FOR MURDER, VOLUNTARY MANSLAUGHTER OR RAPE. There is
49 no limitation of time within which a prosecution for murder, voluntary man-
50 slaughter, or rape pursuant to subsection (1), (2), (3), (4) or (6) of section
51 18-6101, 2., 3., 4., 5. or 7., Idaho Code, or section 18-6108, Idaho Code,
18
1 must be commenced. They may be commenced at any time after the death or rape
2 of the person killed or raped.
3 SECTION 22. That Section 19-402, Idaho Code, be, and the same is hereby
4 amended to read as follows:
5 19-402. COMMENCEMENT OF PROSECUTIONS FOR CRIMES AGAINST CHILDREN AND
6 OTHER FELONIES. (1) A prosecution for any felony other than murder, voluntary
7 manslaughter, rape pursuant to subsection (1), (2), (3), (4) or (6) of sec-
8 tion 18-6101, 2., 3., 4., 5. or 7., Idaho Code, or section 18-6108, Idaho
9 Code, or any felony committed upon or against a minor child, or an act of ter-
10 rorism as set forth in sections 18-8102, 18-8103, 18-3322, 18-3323 and
11 18-3324, Idaho Code, must be commenced by the filing of the complaint or the
12 finding of an indictment within five (5) years after its commission. Except as
13 provided in subsection (2) of this section, a prosecution for any felony com-
14 mitted upon or against a minor child must be commenced within five (5) years
15 after the commission of the offense by the filing of the complaint or a find-
16 ing of an indictment.
17 (2) A prosecution under section 18-1506 or 18-1508, Idaho Code, must be
18 commenced within five (5) years after the date the child reaches eighteen (18)
19 years of age.
20 (3) A prosecution under section 18-1506A, Idaho Code, must be commenced
21 within three (3) years after the date of initial disclosure by the victim.
22 (4) Notwithstanding any other provision of law, an indictment may be
23 found, or an information instituted, at any time without limitation for a
24 prosecution under section 18-8103, 18-3322, 18-3323 or 18-3324, Idaho Code.
25 SECTION 23. That Section 19-2515, Idaho Code, be, and the same is hereby
26 amended to read as follows:
27 19-2515. SENTENCE IN CAPITAL CASES -- SPECIAL SENTENCING PROCEEDING --
28 STATUTORY AGGRAVATING CIRCUMSTANCES -- SPECIAL VERDICT OR WRITTEN FINDINGS.
29 (1) Except as provided in section 19-2515A, Idaho Code, a person convicted of
30 murder in the first degree shall be liable for the imposition of the penalty
31 of death if such person killed, intended a killing, or acted with reckless
32 indifference to human life, irrespective of whether such person directly com-
33 mitted the acts that caused death.
34 (2) Where a person is sentenced to serve a term in the penitentiary,
35 after conviction of a crime which falls within the provisions of section
36 20-223, Idaho Code, except in cases where the court retains jurisdiction, the
37 comments and arguments of the counsel for the state and the defendant relative
38 to the sentencing and the comments of the judge relative to the sentencing
39 shall be recorded. If the comments are recorded electronically, they need not
40 be transcribed. Otherwise, they shall be transcribed by the court reporter.
41 (3) Where a person is convicted of an offense which may be punishable by
42 death, a sentence of death shall not be imposed unless:
43 (a) A notice of intent to seek the death penalty was filed and served as
44 provided in section 18-4004A, Idaho Code; and
45 (b) The jury, or the court if a jury is waived, finds beyond a reasonable
46 doubt at least one (1) statutory aggravating circumstance. Where a statu-
47 tory aggravating circumstance is found, the defendant shall be sentenced
48 to death unless mitigating circumstances which may be presented are found
49 to be sufficiently compelling that the death penalty would be unjust. The
50 jury shall not direct imposition of a sentence of death unless it unani-
51 mously finds at least one (1) statutory aggravating circumstance and unan-
19
1 imously determines that the penalty of death should be imposed.
2 (4) Notwithstanding any court rule to the contrary, when a defendant is
3 adjudicated guilty of murder in the first degree, whether by acceptance of a
4 plea of guilty, by verdict of a jury, or by decision of the trial court sit-
5 ting without a jury, no presentence investigation shall be conducted; provided
6 however, that if a special sentencing proceeding is not held or if a special
7 sentencing proceeding is held but no statutory aggravating circumstance has
8 been proven beyond a reasonable doubt, the court may order that a presentence
9 investigation be conducted.
10 (5) (a) If a person is adjudicated guilty of murder in the first degree,
11 whether by acceptance of a plea of guilty, by verdict of a jury, or by
12 decision of the trial court sitting without a jury, and a notice of intent
13 to seek the death penalty was filed and served as provided in section
14 18-4004A, Idaho Code, a special sentencing proceeding shall be held
15 promptly for the purpose of hearing all relevant evidence and arguments of
16 counsel in aggravation and mitigation of the offense. The special sentenc-
17 ing proceeding shall be conducted before a jury unless a jury is waived by
18 the defendant with the consent of the prosecuting attorney.
19 (b) If the defendant's guilt was determined by a jury verdict, the same
20 jury shall hear the special sentencing proceeding; provided however, that
21 if it is impracticable to reconvene the same jury to hear the special
22 sentencing proceeding due to an insufficient number of jurors, the trial
23 court may dismiss that jury and convene a new jury of twelve (12) persons,
24 plus alternate jurors as the trial court deems necessary pursuant to sec-
25 tion 19-1904, Idaho Code.
26 (c) If the defendant's guilt was determined by a plea of guilty or by a
27 decision of the trial court sitting without a jury, or if a retrial of the
28 special sentencing proceeding is necessary for any reason including, but
29 not limited to, a mistrial in a previous special sentencing proceeding or
30 as a consequence of a remand from an appellate court, the trial court
31 shall impanel a jury of twelve (12) persons, plus alternate jurors as the
32 trial court deems necessary pursuant to section 19-1904, Idaho Code,
33 unless such jury is waived.
34 (d) If a special sentencing proceeding is conducted before a newly impan-
35 eled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of
36 this section, the state and the defense may present evidence to inform the
37 jury of the nature and circumstances of the murder for which the defendant
38 was convicted. The newly impaneled jury shall be instructed that the
39 defendant has previously been found guilty of first-degree murder and that
40 the jury's purpose is limited to making findings relevant for sentencing.
41 (6) At the special sentencing proceeding, the state and the defendant
42 shall be entitled to present all relevant evidence in aggravation and mitiga-
43 tion. Disclosure of evidence to be relied on in the sentencing proceeding
44 shall be made in accordance with Idaho criminal rule 16. Evidence admitted at
45 trial shall be considered and need not be repeated at the sentencing hearing.
46 (7) The jury shall be informed as follows:
47 (a) If the jury finds that a statutory aggravating circumstance exists
48 and no mitigating circumstances exist which would make the imposition of
49 the death penalty unjust, the defendant will be sentenced to death by the
50 court.
51 (b) If the jury finds the existence of a statutory aggravating circum-
52 stance but finds that the existence of mitigating circumstances makes the
53 imposition of the death penalty unjust or the jury cannot unanimously
54 agree on whether the existence of mitigating circumstances makes the impo-
55 sition of the death penalty unjust, the defendant will be sentenced to a
20
1 term of life imprisonment without the possibility of parole; and
2 (c) If the jury does not find the existence of a statutory aggravating
3 circumstance or if the jury cannot unanimously agree on the existence of a
4 statutory aggravating circumstance, the defendant will be sentenced by the
5 court to a term of life imprisonment with a fixed term of not less than
6 ten (10) years.
7 (8) Upon the conclusion of the evidence and arguments in mitigation and
8 aggravation:
9 (a) With regard to each statutory aggravating circumstance alleged by the
10 state, the jury shall return a special verdict stating:
11 (i) Whether the statutory aggravating circumstance has been proven
12 beyond a reasonable doubt; and
13 (ii) If the statutory aggravating circumstance has been proven
14 beyond a reasonable doubt, whether all mitigating circumstances, when
15 weighed against the aggravating circumstance, are sufficiently com-
16 pelling that the death penalty would be unjust.
17 (b) If a jury has been waived, the court shall:
18 (i) Make written findings setting forth any statutory aggravating
19 circumstance found beyond a reasonable doubt;
20 (ii) Set forth in writing any mitigating circumstances considered;
21 and
22 (iii) Upon weighing all mitigating circumstances against each statu-
23 tory aggravating circumstance separately, determine whether mitigat-
24 ing circumstances are found to be sufficiently compelling that the
25 death penalty would be unjust and detail in writing its reasons for
26 so finding.
27 (9) The following are statutory aggravating circumstances, at least one
28 (1) of which must be found to exist beyond a reasonable doubt before a sen-
29 tence of death can be imposed:
30 (a) The defendant was previously convicted of another murder.
31 (b) At the time the murder was committed the defendant also committed
32 another murder.
33 (c) The defendant knowingly created a great risk of death to many per-
34 sons.
35 (d) The murder was committed for remuneration or the promise of remunera-
36 tion or the defendant employed another to commit the murder for remunera-
37 tion or the promise of remuneration.
38 (e) The murder was especially heinous, atrocious or cruel, manifesting
39 exceptional depravity.
40 (f) By the murder, or circumstances surrounding its commission, the
41 defendant exhibited utter disregard for human life.
42 (g) The murder was committed in the perpetration of, or attempt to perpe-
43 trate, arson, rape, statutory rape, robbery, burglary, kidnapping or may-
44 hem and the defendant killed, intended a killing, or acted with reckless
45 indifference to human life.
46 (h) The defendant, by prior conduct or conduct in the commission of the
47 murder at hand, has exhibited a propensity to commit murder which will
48 probably constitute a continuing threat to society.
49 (i) The murder was committed against a former or present peace officer,
50 executive officer, officer of the court, judicial officer or prosecuting
51 attorney because of the exercise of official duty or because of the
52 victim's former or present official status.
53 (j) The murder was committed against a witness or potential witness in a
54 criminal or civil legal proceeding because of such proceeding.
21
1 SECTION 24. That Section 19-2520, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 19-2520. EXTENDED SENTENCE FOR USE OF FIREARM OR DEADLY WEAPON. Any per-
4 son convicted of a violation of sections 18-905 (aggravated assault defined),
5 18-907 (aggravated battery defined), 18-909 (assault with intent to commit a
6 serious felony defined), 18-911 (battery with intent to commit a serious fel-
7 ony defined), 18-1401 (burglary defined), 18-1508(3), 18-1508(4), 18-1508(5),
8 18-1508(6) (lewd conduct with minor or child under sixteen), 18-2501 (rescuing
9 prisoners), 18-2505 (escape by one charged with or convicted of a felony),
10 18-2506 (escape by one charged with or convicted of a misdemeanor), 18-4003
11 (degrees of murder), 18-4006 (manslaughter), 18-4015 (assault with intent to
12 murder), 18-4501 (kidnapping defined), 18-5001 (mayhem defined), 18-6101 (rape
13 defined), 18-6111 (statutory rape), 18-6501 (robbery defined), 37-2732(a)
14 (delivery, manufacture or possession of a controlled substance with intent to
15 deliver) or 37-2732B (trafficking), Idaho Code, who displayed, used, threat-
16 ened, or attempted to use a firearm or other deadly weapon while committing or
17 attempting to commit the crime, shall be sentenced to an extended term of
18 imprisonment. The extended term of imprisonment authorized in this section
19 shall be computed by increasing the maximum sentence authorized for the crime
20 for which the person was convicted by fifteen (15) years.
21 For the purposes of this section, "firearm" means any deadly weapon capa-
22 ble of ejecting or propelling one (1) or more projectiles by the action of any
23 explosive or combustible propellant, and includes unloaded firearms and fire-
24 arms which are inoperable but which can readily be rendered operable.
25 The additional terms provided in this section shall not be imposed unless
26 the fact of displaying, using, threatening, or attempting to use a firearm or
27 other deadly weapon while committing the crime is separately charged in the
28 information or indictment and admitted by the accused or found to be true by
29 the trier of fact at the trial of the substantive crime; provided, however,
30 that the prosecutor shall give notice to the defendant of intent to seek an
31 enhanced penalty at or before the preliminary hearing or before a waiver of
32 the preliminary hearing, if any.
33 This section shall apply even in those cases where the use of a firearm is
34 an element of the offense.
35 SECTION 25. That Section 19-2520C, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 19-2520C. EXTENSION OF PRISON TERMS FOR REPEATED SEX OFFENSES, EXTORTION
38 AND KIDNAPPING. (1) Any person who is found guilty of violation of the provi-
39 sions of sections 18-2401 (extortion), 18-4501 (kidnapping), 18-6101 (rape),
40 18-6111 (statutory rape), 18-6605 (crime against nature), or 18-1508 (lewd and
41 lascivious conduct), Idaho Code, or any attempt or conspiracy to commit such
42 crime(s); and committed such crime(s) by force, violence, duress, menace or
43 threat of great bodily injury and who has been previously found guilty of any
44 such crime, shall be sentenced to an extended term sentence. The extended term
45 of imprisonment authorized in this section shall be computed by increasing the
46 maximum sentence authorized for the crime for which the person was convicted
47 by fifteen (15) years; provided, however, that no extension shall be imposed
48 under this section for any such crime occurring prior to a period of fifteen
49 (15) years during which the person remained free of prison custody, parole and
50 being found guilty of a crime which is a felony; provided further that no
51 extension shall be imposed under this subsection when the provisions of sec-
52 tion 19-2520B, Idaho Code, would be applicable.
22
1 (2) Any person found guilty of an offense specified in subsection (1) of
2 this section who has served two (2) or more prior prison terms for any crime
3 specified in subsection (1) hereof, shall be sentenced to an extended term
4 sentence. The extended term of imprisonment authorized in this section shall
5 be computed by increasing the maximum sentence authorized for the crime for
6 which the person was convicted by twenty (20) years; provided, that no
7 extended term of imprisonment shall be imposed under this subsection for any
8 prison term served prior to a period of fifteen (15) years during which the
9 person remained free of prison custody, parole and being found guilty of a
10 crime which is a felony.
11 (3) The extended terms of imprisonment required by this section shall
12 apply to any aider or abettor; a person who acts in concert with, or a person
13 who conspires with, the perpetrator of the crime.
14 (4) Any extended term of imprisonment required by this section shall not
15 be imposed unless the fact of the prior commission of a crime is separately
16 charged in the accusatory pleading and admitted by the accused or found to be
17 true by the trier of fact after a verdict or finding of guilty on the sub-
18 stantive crime.
19 SECTION 26. That Section 19-5307, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 19-5307. FINES IN CASES OF CRIMES OF VIOLENCE. (1) Irrespective of any
22 penalties set forth under state law, and in addition thereto, the court, at
23 the time of sentencing or such later date as deemed necessary by the court,
24 may impose a fine not to exceed five thousand dollars ($5,000) against any
25 defendant found guilty of any felony listed in subsection (2) of this section.
26 The fine shall operate as a civil judgment against the defendant, and
27 shall be entered on behalf of the victim named in the indictment or informa-
28 tion, or the family of the victim in cases of homicide or crimes against chil-
29 dren, and shall not be subject to any distribution otherwise required in sec-
30 tion 19-4705, Idaho Code. A fine created under this section shall be a sepa-
31 rate written order in addition to any other sentence the court may impose.
32 The fine contemplated in this section shall be ordered solely as a puni-
33 tive measure against the defendant, and shall not be based upon any require-
34 ment of showing of need by the victim. The fine shall not be used as a substi-
35 tute for an order of restitution as contemplated in section 19-5304, Idaho
36 Code, nor shall such an order of restitution or order of compensation entered
37 in accordance with section 72-1018, Idaho Code, be offset by the entry of such
38 fine.
39 A defendant may appeal a fine created under this section in the same man-
40 ner as any other aspect of a sentence imposed by the court. The imposition of
41 a fine created under this section shall not preclude the victim from seeking
42 any other legal remedy; provided that in any civil action brought by or on
43 behalf of the victim, the defendant shall be entitled to offset the amount of
44 any fine imposed pursuant to this section against any award of punitive dam-
45 ages.
46 (2) The felonies for which a fine created under this section may be
47 imposed are those described in:
48 Section 18-805, Idaho Code (Aggravated arson);
49 Section 18-905, Idaho Code (Aggravated assault);
50 Section 18-907, Idaho Code (Aggravated battery);
51 Section 18-909, Idaho Code (Assault with intent to commit a serious fel-
52 ony);
53 Section 18-911, Idaho Code (Battery with intent to commit a serious fel-
23
1 ony);
2 Section 18-913, Idaho Code (Felonious administration of drugs);
3 Section 18-1501, Idaho Code (Felony injury to children);
4 Section 18-1506, Idaho Code (Sexual abuse of a child under the age of six-
5 teen);
6 Section 18-1506A, Idaho Code (Ritualized abuse of a child);
7 Section 18-1507, Idaho Code (Sexual exploitation of a child);
8 Section 18-1508, Idaho Code (Lewd conduct with a child under the age of
9 sixteen);
10 Section 18-4001, Idaho Code (Murder);
11 Section 18-4006, Idaho Code (Felony manslaughter);
12 Section 18-4014, Idaho Code (Administering poison with intent to kill);
13 Section 18-4015, Idaho Code (Assault with intent to murder);
14 Section 18-4502, Idaho Code (First degree kidnapping);
15 Section 18-5001, Idaho Code (Mayhem);
16 Section 18-5501, Idaho Code (Poisoning food, medicine or wells);
17 Section 18-6101, Idaho Code (Rape);
18 Section 18-6108, Idaho Code (Male rape);
19 Section 18-6111, Idaho Code (Statutory rape);
20 Section 18-6501, Idaho Code (Robbery).
21 SECTION 27. That Section 19-5506, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 19-5506. SCOPE OF LAW -- OFFENDERS SUBJECT TO SAMPLE COLLECTION -- EARLY
24 COLLECTION OF SAMPLES. (1) Any person, including any juvenile tried as an
25 adult, who is convicted of, or pleads guilty to, any of the following crimes,
26 regardless of the form of judgment or withheld judgment, and regardless of the
27 sentence imposed or disposition rendered, shall be required to provide to the
28 Idaho state police, a DNA sample and a right thumbprint impression:
29 (a) Aggravated arson (section 18-805, Idaho Code);
30 (b) Aggravated assault (section 18-905, Idaho Code);
31 (c) Aggravated battery (section 18-907, Idaho Code);
32 (d) Assault with the intent to commit a serious felony (section 18-909,
33 Idaho Code);
34 (e) Battery with the intent to commit a serious felony (section 18-911,
35 Idaho Code);
36 (f) Injury to a child (section 18-1501(1), Idaho Code);
37 (g) Sexual abuse of a child under the age of sixteen years (section
38 18-1506, Idaho Code);
39 (h) Possession of sexually exploitive exploitative material for other
40 than a commercial purpose (section 18-1507A, Idaho Code);
41 (i) Lewd conduct with minor child under sixteen (section 18-1508, Idaho
42 Code);
43 (j) Sexual battery of a minor child sixteen or seventeen years of age
44 (section 18-1508A, Idaho Code);
45 (k) Murder, any degree (sections 18-4001 and 18-4003, Idaho Code);
46 (l) Manslaughter (section 18-4006(1) or (2), Idaho Code);
47 (m) Kidnapping, any degree (sections 18-4501 and 18-4502, Idaho Code);
48 (n) Mayhem (section 18-5001, Idaho Code);
49 (o) Rape (section 18-6101, Idaho Code);
50 (p) Statutory rape (section 18-6111, Idaho Code);
51 (q) Robbery (section 18-6501, Idaho Code);
52 (qr) Incest (section 18-6602, Idaho Code);
53 (rs) Crime against nature (section 18-6605, Idaho Code);
24
1 (st) Forcible sexual penetration (section 18-6608, Idaho Code);
2 (tu) Racketeering (section 18-7804, Idaho Code);
3 (uv) Transfer of body fluid which may contain the HIV virus (section
4 39-608, Idaho Code);
5 (vw) Failure to register as sex offender (sections 18-8304 and 18-8308,
6 Idaho Code).
7 (2) In addition to those crimes enumerated in subsection (1) of this sec-
8 tion, any person, including any juvenile tried as an adult, who is convicted
9 for an attempt to commit any of the following crimes, regardless of the form
10 of judgment or withheld judgment, and regardless of the sentence imposed or
11 disposition rendered, shall be required to provide to the Idaho state police,
12 a DNA sample and a right thumbprint impression:
13 (a) Aggravated arson (section 18-805, Idaho Code);
14 (b) Sexual abuse of a child under the age of sixteen years (section
15 18-1506, Idaho Code);
16 (c) Injury to a child (section 18-1501(1), Idaho Code);
17 (d) Lewd conduct with minor child under sixteen (section 18-1508, Idaho
18 Code);
19 (e) Sexual battery of a minor child sixteen or seventeen years of age
20 (section 18-1508A, Idaho Code);
21 (f) Murder, any degree (sections 18-4001 and 18-4003, Idaho Code);
22 (g) Kidnapping, any degree (sections 18-4501 and 18-4502, Idaho Code);
23 (h) Mayhem (section 18-5001, Idaho Code);
24 (i) Rape (section 18-6101, Idaho Code);
25 (j) Statutory rape (section 18-6111, Idaho Code);
26 (k) Robbery (section 18-6501, Idaho Code);
27 (kl) Incest (section 18-6602, Idaho Code);
28 (lm) Crime against nature (section 18-6605, Idaho Code);
29 (mn) Forcible sexual penetration (section 18-6608, Idaho Code);
30 (no) Transfer of body fluid which may contain the HIV virus (section
31 39-608, Idaho Code).
32 (3) This chapter's requirements for submission to tests and procedures
33 for obtaining a DNA sample and thumbprint impression from the persons
34 described above are mandatory and apply to those persons convicted of such
35 crimes covered in this chapter prior to its effective date, and who, as a
36 result of the offense, are incarcerated in a county jail facility or a penal
37 facility or are under probation or parole supervision after the effective date
38 of this chapter.
39 (4) The collection of samples and impressions specified in this chapter
40 are required regardless of whether the person previously has supplied a DNA
41 sample to law enforcement agencies in any other jurisdiction.
42 (5) The requirements of this chapter are mandatory and apply regardless
43 of whether a court advises a person that samples and impressions must be pro-
44 vided to the databank and database as a condition of probation or parole.
45 (6) Persons who have been sentenced to death, or life without the possi-
46 bility of parole, or to any life or indeterminate term are not exempt from the
47 requirements of this chapter.
48 SECTION 28. That Section 20-223, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 20-223. PAROLE AND RULES GOVERNING -- RESTRICTIONS -- PSYCHIATRIC OR PSY-
51 CHOLOGICAL EXAMINATION. (a) Subject to section 19-2513, Idaho Code, the com-
52 mission shall have the power to establish rules, policies or procedures in
53 compliance with chapter 52, title 67, Idaho Code, under which any prisoner,
25
1 excepting any under sentence of death, may be allowed to go upon parole but to
2 remain while on parole in the legal custody and under the control of the board
3 and subject to be taken back into confinement at the direction of the commis-
4 sion. Any prisoner who is granted parole under the interstate compact may be
5 required to post a bond prior to release or prior to such acceptance under the
6 interstate compact; such bond may be posted by the prisoner, the prisoner's
7 family, or other interested party. Failure to successfully complete parole may
8 be grounds for forfeiture of the bond. Upon successful completion of parole,
9 the amount of the bond will be returned, less an amount for administrative
10 costs as determined by commission rule, in compliance with chapter 52, title
11 67, Idaho Code. Funds collected through the bonding process will be placed in
12 a separate commission receipts fund which is hereby created in the state
13 treasury, and utilized for the extradition of said parole violators.
14 (b) No person serving a sentence for rape, statutory rape, incest, com-
15 mitting a lewd act upon a child, crime against nature, or with an intent or an
16 assault with intent to commit any of the said crimes or whose history and con-
17 duct indicate to the commission that he is a sexually dangerous person, shall
18 be released on parole except upon the examination and evaluation of one (1) or
19 more psychiatrists or psychologists to be selected by the commission and such
20 evaluation shall be duly considered by the commission in making its parole
21 determination. The commission may, in its discretion, likewise require a simi-
22 lar examination and evaluation for persons serving sentences for crimes other
23 than those above enumerated. No psychiatrist or psychologist making such eval-
24 uation shall be held financially responsible to any person for denial of
25 parole by the commission or for the results of the future acts of such person
26 if he be granted parole.
27 (c) Before considering the parole of any prisoner, the commission shall
28 afford the prisoner the opportunity to be interviewed by the commission, a
29 commissioner or other designated commission staff. A designated report pre-
30 pared by commission staff or a designated department of correction employee
31 which is specifically to be used by the commission in making a parole determi-
32 nation shall be exempt from public disclosure; such reports contain informa-
33 tion from the presentence investigation report, medical or psychological
34 information, victim information, designated confidential witness information
35 and criminal history information. A parole shall be ordered when, in the dis-
36 cretion of the commission, it is in the best interests of society, and the
37 commission believes the prisoner is able and willing to fulfill the obliga-
38 tions of a law-abiding citizen. Such determination shall not be a reward of
39 clemency and it shall not be considered to be a reduction of sentence or a
40 pardon. The commission may also by its rules, policies or procedures fix the
41 times and conditions under which any application denied may be reconsidered.
42 No action may be maintained against the commission and/or any of its members
43 in any court in connection with any decision taken by the commission to parole
44 a prisoner and neither the commission nor its members shall be liable in any
45 way for its action with respect thereto.
46 (d) In making any parole or commutation decision with respect to a pris-
47 oner, the commission shall consider the compliance of the prisoner with any
48 order of restitution which may have been entered according to section 19-5304,
49 Idaho Code. The commission may make compliance with such an order of restitu-
50 tion a condition of parole.
51 (e) Except as provided in subsection (a) of this section, no provision of
52 chapter 52, title 67, Idaho Code, shall apply to the commission.
53 (f) Subject to the limitations of this subsection and notwithstanding any
54 fixed term of confinement or minimum period of confinement as provided in sec-
55 tion 19-2513, Idaho Code, the commission may parole an inmate for medical rea-
26
1 sons. A prisoner may be considered for medical parole only when the prisoner
2 is permanently incapacitated or terminally ill and when the commission reason-
3 ably believes the prisoner no longer poses a threat to the safety of society.
4 For the purposes of this section "permanently incapacitated" shall mean a per-
5 son who, by reason of an existing physical condition which is not terminal, is
6 permanently and irreversibly physically incapacitated. For the purposes of
7 this section "terminally ill" shall mean a person who has an incurable condi-
8 tion caused by illness or disease and who is irreversibly terminally ill.
9 (g) The commission shall prepare and send to the house and senate judi-
10 ciary committees annually a report containing the names, medical condition and
11 current status of all persons granted parole pursuant to subsection (f) of
12 this section.
13 SECTION 29. That Section 20-240, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 20-240. RESPITES, REPRIEVES, COMMUTATIONS AND PARDONS -- TREASON OR
16 IMPEACHMENT. The governor shall have power to grant respites or reprieves in
17 all cases of convictions for offenses against the state, except treason or
18 imprisonment on impeachment, but such respites or reprieves shall not extend
19 beyond the next session of the commission; and such commission shall at such
20 session continue or determine such respite or reprieve, or may commute or par-
21 don the offense as herein provided. In cases of conviction of treason, the
22 governor shall have the power to suspend the execution of the sentence until
23 the case shall be reported to the legislature at its next regular session,
24 when the legislature shall either pardon or commute the sentence, direct its
25 execution or grant a further reprieve. The commission shall have full and
26 final authority to grant commutations and pardons except with respect to sen-
27 tences for murder, voluntary manslaughter, rape, statutory rape, kidnapping,
28 lewd and lascivious conduct with a minor child, and manufacture or delivery of
29 controlled substances. The commission shall conduct commutation and pardon
30 proceedings pursuant to rules and regulations adopted in accordance with law
31 and may attach such conditions as it deems appropriate in granting pardons or
32 commutations. With respect to commutations and pardons for the offenses named
33 above, the commission's determination shall only constitute a recommendation
34 subject to approval or disapproval by the governor. No commutation or pardon
35 for such named offenses shall be effective until presented to and approved by
36 the governor. Any commutation or pardon recommendation not so approved within
37 thirty (30) days of the commission's recommendation shall be deemed denied.
38 SECTION 30. That Section 20-525A, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 20-525A. EXPUNGEMENT OF RECORD -- HEARING -- FINDINGS NECESSARY -- SPE-
41 CIAL INDEX -- EFFECT OF ORDER. (1) Any person who has been adjudicated in a
42 case under this act may, after the expiration of five (5) years from the date
43 of termination of the continuing jurisdiction of the court, or, in case the
44 juvenile was committed to the juvenile corrections center, five (5) years from
45 the date of his release from the juvenile corrections center, or after reach-
46 ing age eighteen (18) years, whichever occurs last, petition the court for the
47 expungement of his record. Upon the filing of the petition, the court shall
48 set a date for a hearing and shall notify the prosecuting attorney of the pen-
49 dency of the petition and of the date of the hearing. The prosecuting attorney
50 and any other person who may have relevant information about the petitioner
51 may testify at the hearing.
27
1 (2) The court may not expunge a conviction for any of the following
2 crimes from a juvenile's record:
3 (a) Administering poison with intent to kill (18-4014, Idaho Code);
4 (b) Aggravated battery (18-907, Idaho Code);
5 (c) Armed robbery (chapter 65, title 18, Idaho Code);
6 (d) Arson (chapter 8, title 18, Idaho Code);
7 (e) Assault with intent to commit a serious felony (18-909, Idaho Code);
8 (f) Assault with intent to murder (18-4015, Idaho Code);
9 (g) Assault or battery upon certain personnel, felony (18-915, Idaho
10 Code);
11 (h) Forcible sexual penetration by use of a foreign object (18-6608,
12 Idaho Code);
13 (i) Infamous crime against nature, committed by force or violence
14 (18-6605, Idaho Code);
15 (j) Injury to child, felony (18-1501, Idaho Code);
16 (k) Kidnapping (18-4501, Idaho Code);
17 (l) Murder of any degree (18-4001 and 18-4003, Idaho Code);
18 (m) Rape, excluding statutory rape (18-6101 and 18-6108, Idaho Code);
19 (n) Ritualized abuse of a child (18-1506A, Idaho Code);
20 (o) Sexual exploitation of a child (18-1507, Idaho Code);
21 (p) Unlawful use of destructive device or bomb (18-3320, Idaho Code);
22 (q) Voluntary manslaughter (18-4006 1., Idaho Code);
23 (r) A violation of the provisions of section 37-2732(a)(1)(A), (B) or
24 (C), Idaho Code, when the violation occurred on or within one thousand
25 (1,000) feet of the property of any public or private primary or secondary
26 school, or in those portions of any building, park, stadium or other
27 structure or grounds which were, at the time of the violation, being used
28 for an activity sponsored by or through such a school;
29 (s) A violation of the provisions of section 37-2732B, Idaho Code,
30 related to drug trafficking or manufacturing of illegal drugs.
31 (3) If the court finds after hearing that the petitioner has not been
32 adjudicated as a juvenile for any of the crimes identified in subsection (2)
33 of this section, and has not been convicted of a felony, or of a misdemeanor
34 wherein violence toward another person was attempted or committed since the
35 termination of the court's jurisdiction or his release from the juvenile cor-
36 rections center, and that no proceeding involving such felony or misdemeanor
37 is pending or being instituted against him, and if the court further finds to
38 its satisfaction that the petitioner has been held accountable, is developing
39 life skills necessary to become a contributing member of the community and
40 that the expungement of the petitioner's record will not compromise public
41 safety, it shall order all records in the petitioner's case in the custody of
42 the court and all such records in the custody of any other agency or official
43 sealed; and shall further order all references to said adjudication removed
44 from all indices and from all other records available to the public. However,
45 a special index of the expungement proceedings and records shall be kept by
46 the court ordering expungement, which index shall not be available to the pub-
47 lic and shall be revealed only upon order of a court of competent jurisdic-
48 tion. Copies of the order shall be sent to each agency or official named in
49 the order. Upon the entry of the order the proceedings in the petitioner's
50 case shall be deemed never to have occurred and the petitioner may properly
51 reply accordingly upon any inquiry in the matter. Inspection of the records
52 may thereafter be permitted only by the court upon petition by the person who
53 is the subject of the records or by any other court of competent jurisdiction,
54 and only to persons named in the petition.
28
1 SECTION 31. That Section 33-1208, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 33-1208. REVOCATION, SUSPENSION OR DENIAL OF CERTIFICATE -- GROUNDS. 1.
4 The state board of education may revoke or suspend any certificate issued or
5 authorized under the provisions of section 33-1201, Idaho Code, upon any of
6 the following grounds:
7 a. Gross neglect of duty;
8 b. Incompetency;
9 c. Breach of the teaching contract;
10 d. Making any material statement of fact in the application for a certif-
11 icate, which the applicant knows to be false;
12 e. Revocation, suspension, denial or surrender of a certificate in
13 another state for any reason constituting grounds for revocation in this
14 state;
15 f. Conviction, finding of guilt, withheld judgment or suspended sentence,
16 in this or any other state of a crime involving moral turpitude;
17 g. Conviction, finding of guilt, withheld judgment, or suspended sentence
18 in this state or any other state for the delivery, manufacture or produc-
19 tion of controlled substances or simulated controlled substances as those
20 terms are defined in section 37-2701, Idaho Code;
21 h. A guilty plea or a finding of guilt, notwithstanding the form of the
22 judgment or withheld judgment in this or any other state, of the crime of
23 involuntary manslaughter, section 18-4006 2. or section 18-4006 3., Idaho
24 Code;
25 i. Any disqualification which would have been sufficient grounds for
26 refusing to issue or authorize a certificate, if the disqualification
27 existed or had been known at the time of its issuance or authorization;
28 j. Wilful Willful violation of any professional code or standard of eth-
29 ics or conduct, adopted by the state board of education;
30 k. The kidnapping of a child, section 18-4503, Idaho Code.
31 2. The state board of education shall permanently revoke any certificate
32 issued or authorized under the provisions of section 33-1201, Idaho Code, and
33 shall deny the application for issuance of a certificate of a person who
34 pleads guilty to or is found guilty of, notwithstanding the form of the judg-
35 ment or withheld judgment, any of the following felony offenses against a
36 child:
37 a. The aggravated assault of a child, section 18-905, Idaho Code, or the
38 assault with intent to commit a serious felony against a child, section
39 18-909, Idaho Code.
40 b. The aggravated battery of a child, section 18-907, Idaho Code, or the
41 battery with intent to commit a serious felony against a child, section
42 18-911, Idaho Code.
43 c. The injury or death of a child, section 18-1501, Idaho Code.
44 d. The sexual abuse of a child under sixteen (16) years of age, section
45 18-1506, Idaho Code.
46 e. The ritualized abuse of a child under eighteen (18) years of age, sec-
47 tion 18-1506A, Idaho Code.
48 f. The sexual exploitation of a child, section 18-1507, Idaho Code.
49 g. Possession of photographic representations of sexual conduct involving
50 a child, section 18-1507A, Idaho Code.
51 h. Lewd conduct with a child under the age of sixteen (16) years, section
52 18-1508, Idaho Code.
53 i. The sale or barter of a child for adoption or other purposes, section
54 18-1511, Idaho Code.
29
1 j. The murder of a child, section 18-4003, Idaho Code, or the voluntary
2 manslaughter of a child, section 18-4006 1., Idaho Code.
3 k. The kidnapping of a child, section 18-4502, Idaho Code.
4 l. The importation or exportation of a juvenile for immoral purposes,
5 section 18-5601, Idaho Code.
6 m. The abduction of a person under eighteen (18) years of age for prosti-
7 tution, section 18-5610, Idaho Code.
8 n. The rape of a child, section 18-6101 or 18-6108, Idaho Code, or statu-
9 tory rape, section 18-6111, Idaho Code.
10 The general classes of felonies listed in subsection 2. of this section shall
11 include equivalent laws of federal or other state jurisdictions. For the pur-
12 pose of this subsection, "child" means a minor or juvenile as defined by the
13 applicable state or federal law.
14 3. The state board of education may investigate and follow the procedures
15 set forth in section 33-1209, Idaho Code, for any allegation of inappropriate
16 conduct as defined in this section, by a holder of a certificate whether or
17 not the holder has surrendered his certificate without a hearing or failed to
18 renew his certificate. In those cases where the holder of a certificate has
19 surrendered or failed to renew his certificate and it was found that inappro-
20 priate conduct occurred, the board shall record such findings in the permanent
21 record of the individual and shall deny the issuance of a teaching certifi-
22 cate.
23 4. Any person whose certificate may be or has been revoked, suspended or
24 denied under the provisions of this section shall be afforded a hearing
25 according to the provisions of section 33-1209, Idaho Code.
26 5. The state board may deny the issuance of a certificate for any reason
27 that would be a ground for revocation or suspension.
28 SECTION 32. That Section 39-1113, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 39-1113. DENIAL, SUSPENSION OR REVOCATION OF LICENSE. (1) A license may
31 be denied, suspended or revoked by the department if the department finds that
32 the applicant or licensee does not comply with the provisions of this chapter.
33 (2) No person who has been found guilty of or received a withheld judg-
34 ment for any offense involving neglect or any physical injury to, or other
35 abuse of a child including the following offenses or a similar provision in
36 another jurisdiction, shall be eligible for a license under the provisions of
37 this chapter:
38 (a) Injuring a child, section 18-1501, Idaho Code.
39 (b) The sexual abuse of a child under sixteen (16) years of age, section
40 18-1506, Idaho Code.
41 (c) The ritualized abuse of a child under eighteen (18) years of age,
42 section 18-1506A, Idaho Code.
43 (d) The sexual exploitation of a child, section 18-1507 or 18-1507A,
44 Idaho Code.
45 (e) Lewd conduct with a child under the age of sixteen (16) years, sec-
46 tion 18-1508, Idaho Code.
47 (f) The sale or barter of a child for adoption or other purposes, section
48 18-1511, Idaho Code.
49 (g) Murder, section 18-4001 or 18-4003, Idaho Code.
50 (h) Voluntary manslaughter, section 18-4006, Idaho Code.
51 (i) Rape, section 18-6101 or 18-6108, Idaho Code.
52 (j) Statutory rape, section 18-6111, Idaho Code.
53 (k) Incest, section 18-6602, Idaho Code.
30
1 (kl) Forcible sexual penetration by use of foreign object, section
2 18-6608, Idaho Code.
3 (3) The denial, suspension or revocation of a license under this chapter
4 may be appealed to the district court of the county in which the affected day
5 care center is located and the appeal shall be heard de novo in the district
6 court.
7 SECTION 33. That Section 56-209c, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 56-209c. DENIAL OF PAYMENT FOR ABORTIONS UNDER CERTAIN CONDITIONS. No
10 funds available to the department of health and welfare, by appropriation or
11 otherwise, shall be used to pay for abortions, unless it is the recommendation
12 of two (2) consulting physicians that an abortion is necessary to save the
13 life of the mother, or unless the pregnancy is a result of rape, statutory
14 rape or incest as determined by the courts.
15 SECTION 34. That Section 72-1025, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 72-1025. FINES -- REIMBURSEMENTS -- PRIORITY -- DISPOSITION. (1) In addi-
18 tion to any other fine which may be imposed upon each person found guilty of
19 criminal activity, the court shall impose a fine or reimbursement according to
20 the following schedule, unless the court orders that such fine or reimburse-
21 ment be waived only when the defendant is indigent and at the time of sentenc-
22 ing shows good cause for inability to pay and written findings to that effect
23 are entered by the court:
24 (a) For each conviction or finding of guilt of each felony count, a fine
25 or reimbursement of not less than fifty dollars ($50.00) per felony count;
26 (b) For each conviction or finding of guilt of each misdemeanor count, a
27 fine or reimbursement of twenty-five dollars ($25.00) per misdemeanor
28 count;
29 (c) In addition to any fine or reimbursement ordered under subsection (a)
30 or (b) above, the court shall impose a fine or reimbursement of not less
31 than two hundred dollars ($200) per count for any conviction or finding of
32 guilt for any sex offense, including, but not limited to, offenses pursu-
33 ant to sections 18-1506, 18-1507, 18-1508, 18-1508A, 18-6101, 18-6108,
34 18-6111, 18-6605 and 18-6608, Idaho Code.
35 (2) The fine or reimbursement imposed under the provisions of this sec-
36 tion shall have priority over all other judgments of the court, except an
37 order to pay court costs.
38 (3) Notwithstanding the provisions of section 19-4705, Idaho Code, the
39 fines or reimbursements imposed under the provisions of this section shall be
40 paid into the crime victims compensation account.
STATEMENT OF PURPOSE
RS 14146
The purpose of this legislation is to provide parameters for the
offense of statutory rape that would give prosecutors more
guidance and could ensure greater uniformity of charges across
the state of Idaho. Currently statutory rape cases are treated
differently in the various jurisdictions. While some individuals
get probation, others are sent to prison; all must register as
sex offenders. Current law can be used by angry parents to
pressure law enforcement to seek criminal charges against
consensual acts between teens. On the other hand, current law on
statutory rape can be used as a plea bargaining tool in some
cases.
FISCAL IMPACT
There is no fiscal impact to the state or local jurisdictions.
Contact
Name: Rep. Wendy Jaquet
Phone: 208/332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 796