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|
As Introduced
123rd General Assembly
Regular Session
1999-2000 | H.B. No. 442 |
REPRESENTATIVES WINKLER-ALLEN-BRITTON-CATES-CLANCY-EVANS-
HARRIS-HARTNETT-JERSE-PRINGLE-SCHURING-TAYLOR-TIBERI-
TRAKAS-WILLAMOWSKI
A BILL
To amend sections 2151.14, 2151.315, 2151.3511, 2907.02, and 2907.04 of the
Revised Code to expand the offense of rape by including within that offense a
prohibition against a person who previously has been convicted of certain sex
offenses and is 18 or older from engaging in sexual conduct with a person who
is 13 or older but less than 16 and a prohibition against a person engaging in
sexual contact with another person who is ten or more years of age younger,
thirteen years of age or older, and less than sixteen years of age and to
rename the offense of corruption of a minor as the offense of sexual assault
on a minor.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2151.14, 2151.315, 2151.3511, 2907.02, and 2907.04 of
the Revised Code be amended to read as follows:
Sec. 2151.14. (A) The chief probation officer, under the
direction of the juvenile judge, shall have charge of the work of
the probation department. The department shall make any
investigations that the judge directs, keep a written record of
the investigations, and submit the record to the judge or deal
with them as the judge directs. The department shall furnish to any
person placed on probation a statement of the conditions of
probation and shall instruct the person regarding them. The
department
shall keep informed concerning the conduct and condition of each
person under its supervision and shall report on their conduct
and condition to the judge as the judge directs. Each probation officer
shall use all suitable methods to aid persons on probation and to
bring about improvement in their conduct and condition. The
department shall keep full records of its work, keep accurate and
complete accounts of money collected from persons under its
supervision, give receipts for the money, and make reports on the
money as the judge directs.
(B) Except as provided in division (C) or (D) of this
section, the reports and records of the department shall be
considered confidential information and shall not be made public.
A probation officer may serve the process of the court within or
without the county, make arrests without warrant upon
reasonable information or upon view of the violation of this
chapter, detain the person arrested pending the issuance of a
warrant, and perform any other duties, incident to the office,
that the judge directs. All sheriffs, deputy sheriffs,
constables, marshals, deputy marshals, chiefs of police,
municipal corporation and township police officers, and other
peace officers shall render assistance to probation officers in
the performance of their duties when requested to do so by any
probation officer.
(C) When a complaint has been filed alleging that a child
is delinquent by reason of having committed an act that would
constitute a violation of section 2907.02, 2907.03, 2907.04,
2907.05, or 2907.06 of the Revised Code if committed by
an adult and the arresting authority, a court, or a probation
officer discovers that the child or a person whom the child
caused to engage in sexual activity, as defined in section
2907.01 of the Revised Code, has a communicable disease, the
arresting authority, court, or probation officer immediately
shall notify the victim of the delinquent act of the nature of
the disease.
(D)(1) In accordance with division (D)(2) of this section,
subject to the limitation specified in division (D)(4) of this
section, and in connection with a disposition pursuant to section
2151.354 of the Revised Code when a child has been found to be an
unruly child, a disposition pursuant to section 2151.355 of the
Revised Code when a child has been found to be a delinquent
child, or a disposition pursuant to section 2151.356 of the
Revised Code when a child has been found to be a juvenile traffic
offender, the court may issue an order requiring boards of
education, governing bodies of chartered nonpublic schools,
public children services agencies, private child placing
agencies, probation departments, law enforcement agencies, and
prosecuting attorneys that have records related to the child in
question to provide copies of one or more specified records, or
specified information in one or more specified records, that the
individual or entity has with respect to the child to any of the
following individuals or entities that request the records in
accordance with division (D)(3)(a) of this section:
(a) The child;
(b) The attorney or guardian ad litem of the child;
(c) A parent, guardian, or custodian of the child;
(d) A prosecuting attorney;
(e) A board of education of a public school district;
(f) A probation department of a juvenile court;
(g) A public children services agency or private child
placing agency that has custody of the child, is providing
services to the child or the child's family, or is preparing a social
history or performing any other function for the juvenile court;
(h) The department of youth services when the department
has custody of the child or is performing any services for the
child that are required by the juvenile court or by statute;
(i) The individual in control of a juvenile detention or
rehabilitation facility to which the child has been committed;
(j) An employee of the juvenile court that found the child
to be an unruly child, a delinquent child, or a juvenile traffic
offender;
(k) Any other entity that has custody of the child or is
providing treatment, rehabilitation, or other services for the
child pursuant to a court order, statutory requirement, or other
arrangement.
(2) Any individual or entity listed in divisions (D)(1)(a)
to (k) of this section may file a motion with the court that
requests the court to issue an order as described in division
(D)(1) of this section. If such a motion is filed, the court
shall conduct a hearing on it. If at the hearing the movant
demonstrates a need for one or more specified records, or for
information in one or more specified records, related to the
child in question and additionally demonstrates the relevance of
the information sought to be obtained from those records, and if
the court determines that the limitation specified in division
(D)(4) of this section does not preclude the provision of a
specified record or specified information to the movant, then the
court may issue an order to a designated individual or entity to
provide the movant with copies of one or more specified records
or with specified information contained in one or more specified
records.
(3)(a) Any individual or entity that is authorized by an
order issued pursuant to division (D)(1) of this section to
obtain copies of one or more specified records, or specified
information, related to a particular child may file a written
request for copies of the records or for the information with any
individual or entity required by the order to provide copies of
the records or the information. The request shall be in writing,
describe the type of records or the information requested,
explain the need for the records or the information, and be
accompanied by a copy of the order.
(b) If an individual or entity that is required by an
order issued pursuant to division (D)(1) of this section to
provide one or more specified records, or specified information,
related to a child receives a written request for the records or
information in accordance with division (D)(3)(a) of this
section, the individual or entity immediately shall comply with
the request to the extent it is able to do so, unless the
individual or entity determines that it is unable to comply with
the request because it is prohibited by law from doing so, or
unless the requesting individual or entity does not have
authority to obtain the requested records or information. If the
individual or entity determines that it is unable to comply with
the request, it shall file a motion with the court that issued
the order requesting the court to determine the extent to which
it is required to comply with the request for records or
information. Upon the filing of the motion, the court
immediately shall hold a hearing on the motion, determine the
extent to which the movant is required to comply with the request
for records or information, and issue findings of fact and
conclusions of law in support of its determination. The
determination of the court shall be final. If the court
determines that the movant is required to comply with the request
for records or information, it shall identify the specific
records or information that must be supplied to the individual or
entity that requested the records or information.
(c) If an individual or entity is required to provide
copies of one or more specified records pursuant to division (D)
of this section, the individual or entity may charge a fee for
the copies that does not exceed the cost of supplying them.
(4) Division (D) of this section does not require, authorize,
or permit the dissemination of any records or any information
contained in any records if the dissemination of the records or
information generally is prohibited by any provision of the
Revised Code and a specific provision of the Revised Code does
not specifically authorize or permit the dissemination of the
records or information pursuant to division (D) of this section.
Sec. 2151.315. (A) As used in this section, "DNA
analysis" and "DNA specimen" have the same meanings as in section
109.573 of the Revised Code.
(B)(1) A child who is adjudicated a delinquent child for committing an act
listed in division (D) of this section and who is committed to the custody of
the department of youth services or to a school, camp, institution,
or other facility for delinquent children described in division
(A)(3) of section 2151.355 of the Revised Code shall submit to a DNA
specimen collection procedure administered by the director of youth services
if committed to the department or by the chief administrative
officer of the school, camp, institution, or other facility for
delinquent children to which the child was committed. If the
court commits the child to the department of youth services, the
director of youth services shall cause the DNA specimen to be
collected from the child during the intake process at an institution
operated by or under the control of the department. If the
court commits the child to a school, camp, institution, or other
facility for delinquent children, the chief administrative
officer of the school, camp, institution, or facility to which
the child is committed shall cause the
DNA specimen to be collected
from the child during the intake process for the school, camp,
institution, or facility. In accordance with division (C) of this section,
the director or the chief administrative officer
shall cause the
DNA
specimen to be forwarded to
the bureau of criminal identification and investigation no later
than fifteen days after the date of the collection of the
DNA specimen. The DNA specimen shall be collected
from the child in accordance with division
(C) of this section.
(2) If a child is adjudicated a delinquent child for
committing an act
listed in division (D) of this section, is committed to the
department of youth
services or to a school, camp, institution, or other facility for
delinquent children, and does not submit to a DNA
specimen collection
procedure pursuant to division (B)(1) of this section, prior to the child's
release from the custody of the department of
youth services or from the custody of the school, camp,
institution, or facility, the child shall submit to, and the
director of youth services or the chief administrator of the
school, camp, institution, or facility to which the child is
committed shall administer, a DNA specimen collection
procedure at the institution operated by or under the control of
the department of youth services or at the school, camp, institution, or
facility to which the child is committed. In accordance with
division (C) of this section, the director or the
chief
administrative officer shall cause the DNA
specimen to be forwarded to the bureau of criminal identification and
investigation no later than fifteen days after the date of the collection of
the DNA specimen. The DNA specimen shall be collected in
accordance with division (C) of this section.
(C) A physician, registered nurse,
licensed practical nurse, duly licensed clinical laboratory technician, or
other qualified medical practitioner shall collect in a medically approved
manner the DNA specimen required to be collected pursuant to division
(B) of this section. No later than fifteen days after the date of
the collection of the DNA specimen, the
director of youth services or the chief
administrative officer of the school, camp, institution, or
other facility for delinquent children to which the child is
committed shall cause the DNA
specimen to be forwarded to the bureau of criminal
identification and
investigation in accordance with procedures established by the
superintendent
of the bureau under division (H) of section 109.573 of
the Revised Code. The bureau shall provide the
specimen vials, mailing tubes, labels, postage, and instruction
needed for the collection and
forwarding of the DNA specimen to the bureau.
(D) The director of youth services and the chief administrative
officer of a school, camp, institution, or other facility for delinquent
children shall cause a DNA specimen to be collected in accordance
with divisions (B) and (C) of this section from each child
in its custody who is adjudicated a delinquent child for committing any
of the following
acts:
(1) A violation of section 2903.01, 2903.02, 2905.01,
2907.02, 2907.03, 2907.04, 2907.05, or
2911.11 of the Revised Code;
(2) A violation of section 2907.12 of the Revised Code as it existed prior to
September 3, 1996;
(3) An attempt to commit a violation of section 2907.02, 2907.03,
2907.04, or
2907.05 of the Revised Code or to commit a violation of
section 2907.12 of the Revised Code as it existed prior to September 3,
1996;
(4) A violation of any law that arose out of the same
facts and
circumstances and
same act as did a charge against the child of a violation
of section 2903.01, 2903.02, 2905.01, 2907.02, 2907.03, 2907.04,
2907.05, or 2911.11 of the Revised Code
that previously was dismissed or amended or as did a charge against the
child of a violation of section 2907.12 of the Revised Code as it existed
prior to September 3, 1996, that previously was dismissed or amended;
(5) A violation of section 2905.02 or 2919.23 of the
Revised Code that would have been a
violation of section 2905.04 of the Revised Code as it existed prior to July
1, 1996, had the violation been committed prior to that date.
(E) The director of youth services and the chief administrative
officer of a school, camp, institution, or other facility for delinquent
children is not required to comply with this section until the superintendent
of the
bureau of criminal identification and investigation gives agencies in the
juvenile justice system, as defined in section 181.51 of the Revised Code, in
the state
official notification that the
state DNA laboratory is prepared to accept DNA
specimens.
Sec. 2151.3511. (A)(1) As used in this section, "victim" includes any of
the following persons:
(a) A person who was a victim of a violation identified in division
(A)(2) of this section or an act that would be an offense of violence if
committed by an adult;
(b) A person against whom was directed any conduct that constitutes, or that
is an element of, a violation identified in division
(A)(2) of this section or an act that would be an offense of violence if
committed by an adult.
(2) In any proceeding in juvenile
court involving a complaint in which a child is charged with a
violation of section 2905.03, 2905.05, 2907.02, 2907.03,
2907.04, 2907.05, 2907.06, 2907.07, 2907.09, 2907.21,
2907.23, 2907.24, 2907.31, 2907.32, 2907.321, 2907.322,
2907.323, or 2919.22 of the Revised
Code or an act that would be an offense of violence if committed by an
adult and in which an alleged victim of the violation or act was a
child who was less than thirteen years of age when the complaint was
filed, the juvenile
judge, upon motion of an attorney for the prosecution, shall
order that the testimony of the child victim be taken by
deposition. The prosecution also may request that the deposition
be videotaped in accordance with division (A)(3) of this
section. The judge
shall notify the child victim whose deposition is to be
taken, the prosecution, and the attorney for the child who is
charged with the violation or act of the date, time, and place for
taking the deposition. The notice shall identify the child victim
who is to be
examined and shall indicate whether a request that the
deposition be videotaped
has been made. The child who is charged with the violation or act
shall have the right to
attend the deposition and the right to be represented by counsel.
Depositions shall be taken in the manner provided in civil cases,
except that the judge in the proceeding shall preside at the
taking of the deposition and shall rule at that time on any
objections of the prosecution or the attorney for the child
charged with the violation or act. The prosecution and the attorney
for the child charged with the violation or act shall have the right,
as at an adjudication hearing, to full
examination and cross-examination of the child victim whose
deposition is to be taken. If a deposition taken under this
division is intended to be offered as evidence in the proceeding,
it shall be filed in the juvenile court in which the action is
pending and is admissible in the manner described in division
(B) of this section. If a deposition of a child victim taken
under this division is admitted as evidence at the proceeding
under division (B) of this section, the child victim shall not be
required to testify in person at the proceeding. However, at any
time before the conclusion of the proceeding, the attorney for
the child charged with the violation or act may file a motion with the
judge requesting that another deposition of the child victim be taken because
new evidence material to the defense of the child charged has been
discovered that the attorney for the child charged could not with
reasonable diligence have discovered prior to the taking of the
admitted deposition. Any motion requesting another
deposition shall be accompanied by
supporting affidavits. Upon the filing of the motion and
affidavits, the court may order that additional testimony of the
child victim relative to the new evidence be taken by another
deposition. If the court orders the taking of another deposition
under this provision, the deposition shall be taken in accordance
with this division; if the admitted deposition was a videotaped
deposition taken in accordance with division (A)(3) of this
section, the new deposition also shall be videotaped in
accordance with that division, and, in other cases, the new
deposition may be videotaped in accordance with that division.
(3) If the prosecution requests that a deposition to be
taken under division (A)(2) of this section be videotaped,
the juvenile judge shall order that the deposition be videotaped in
accordance with this division. If a juvenile judge issues
an order to video tape the deposition, the judge shall exclude from the
room in which the
deposition is to be taken every person except the child victim
giving the testimony, the judge, one or more interpreters if
needed, the attorneys for the prosecution and the child who is
charged with the violation or act, any person needed to operate the
equipment to be used, one person chosen by the child victim
giving the deposition, and any person whose presence the judge
determines would contribute to the welfare and well-being of the
child victim giving the deposition. The person chosen by the
child victim shall not be a witness in the
proceeding
and, both before and during the deposition, shall not discuss
the
testimony of the child victim with any other witness in the
proceeding. To the extent feasible, any person operating the
recording equipment shall be restricted to a room adjacent to the
room in which the deposition is being taken, or to a location in
the room in which the deposition is being taken that is behind a
screen or mirror so that the person operating the
recording equipment can see and hear, but
cannot be seen or heard by, the child victim giving the
deposition during the deposition. The child who is charged with
the violation or act shall be permitted to observe and hear the
testimony of the child victim giving the deposition on a monitor, shall be
provided with an electronic means of immediate
communication with the attorney of the child who is charged with the violation
or act during the testimony, and shall
be restricted to a location from which the
child who is
charged with the violation or act cannot be seen
or heard by the child victim giving the deposition, except on a
monitor provided for that purpose. The child victim giving the
deposition shall be provided with a monitor on which the child victim can
observe, while giving testimony, the child who is charged
with the
violation or act. The judge, at the judge's discretion, may preside at
the
deposition by electronic means from outside the room in which the
deposition is to be taken; if the judge presides by electronic means, the
judge shall be provided with
monitors on which the judge can
see each person in the room in which the deposition is to be
taken and with an electronic means of communication with each
person in that room, and each person in the room shall be
provided with a
monitor on which that person can see the judge and with an electronic
means of
communication with the judge. A deposition that is videotaped
under this division shall be taken and filed in the manner
described in division (A)(2) of this section and is
admissible in
the manner described in this division and division (B) of this
section, and, if a deposition that is
videotaped under this division is admitted as
evidence at the proceeding, the child victim shall not be
required to testify in person at the proceeding. No deposition
videotaped under this division shall be admitted as evidence at
any proceeding unless division (B) of this section is satisfied
relative to the deposition and all of the following apply
relative to the recording:
(a) The recording is both aural and visual and is recorded
on film or videotape, or by other electronic means.
(b) The recording is authenticated under the Rules of
Evidence and the Rules of Criminal Procedure as a fair and
accurate representation of what occurred, and the recording is
not altered other than at the direction and under the supervision
of the judge in the proceeding.
(c) Each voice on the recording that is material to the
testimony on the recording or the making of the recording, as
determined by the judge, is identified.
(d) Both the prosecution and the child who is charged with
the violation or act are afforded an opportunity to view the recording
before it is shown in the proceeding.
(B)(1) At any proceeding in relation to which a deposition
was taken under division (A) of this section, the deposition or a
part of it is admissible in evidence upon motion of the
prosecution if the testimony in the deposition or the part to be
admitted is not excluded by the hearsay rule and if the
deposition or the part to be admitted otherwise is admissible
under the Rules of Evidence. For purposes of this division,
testimony is not excluded by the hearsay rule if the testimony is
not hearsay under Evidence Rule 801; if the testimony is within
an exception to the hearsay rule set forth in Evidence Rule 803;
if the child victim who gave the testimony is unavailable as a
witness, as defined in Evidence Rule 804, and the testimony is
admissible under that rule; or if both of the following apply:
(a) The child who is charged with the violation or act had an
opportunity and similar motive at the time of the taking of the
deposition to develop the testimony by direct, cross, or redirect
examination.
(b) The judge determines that there is reasonable cause to
believe that, if the child victim who gave the testimony in the
deposition were to testify in person at the proceeding, the child
victim would experience serious emotional trauma as a result of
the child victim's participation at the proceeding.
(2) Objections to receiving in evidence a deposition or a
part of it under division (B) of this section shall be made as
provided in civil actions.
(3) The provisions of divisions (A) and (B) of this
section are in addition to any other provisions of the Revised
Code, the Rules of Juvenile Procedure, the Rules of Criminal
Procedure, or the Rules of Evidence that pertain to the taking or
admission of depositions in a juvenile court proceeding and do
not limit the admissibility under any of those other
provisions of
any deposition taken under division (A) of this section or
otherwise taken.
(C) In any proceeding in juvenile court involving a
complaint in which a child is charged with a violation listed in
division (A)(2) of this section or an act that would be
an offense of violence if committed by an adult and in which an alleged
victim of the violation or offense
was a child who was less than thirteen years of age
when the complaint
was filed, the prosecution may file a motion with the juvenile
judge requesting the judge to order the testimony of the child
victim to be taken in a room other than the room in which the
proceeding is being conducted and be televised, by closed circuit
equipment, into the room in which the proceeding is being
conducted to be viewed by the child who is charged with the
violation or act and any other persons who are not permitted in the
room
in which the testimony is to be taken but who would have been
present during the testimony of the child victim had it been
given in the room in which the proceeding is being conducted.
Except for good cause shown, the prosecution shall file a
motion under this division at least seven days before the date of the
proceeding.
The juvenile judge may issue the order upon
the motion of the
prosecution filed under this division, if the judge determines that the
child victim is
unavailable to testify in the room in which the proceeding is
being conducted in the physical presence of the child charged
with the violation or act, due to one or more of the reasons set forth
in division (E) of this section. If a juvenile judge issues
an order of that nature, the judge shall exclude from the room in which
the
testimony is to be taken every person except a person described
in division (A)(3) of this section. The judge, at the
judge's
discretion, may preside during the giving of the testimony by
electronic means from outside the room in which it is being
given, subject to the limitations set forth in division
(A)(3) of
this section. To the extent feasible, any person operating the
televising equipment shall be hidden from the sight and hearing
of the child victim giving the testimony, in a manner similar to
that described in division (A)(3) of this section. The
child who
is charged with the violation or act shall be permitted to observe and
hear the testimony of the child victim giving the testimony on a
monitor, shall be provided with an electronic means of
immediate communication with the attorney of the child who is
charged with the violation or act during the testimony,
and shall be restricted to a location from which the child
who is charged with the violation or act cannot
be seen or heard by the child victim giving the testimony, except
on a monitor provided for that purpose. The child victim giving
the testimony shall be provided with a monitor on which the child victim can
observe, while giving testimony, the child who is charged
with the violation or act.
(D) In any proceeding in juvenile court involving a
complaint in which a child is charged with a violation listed in
division (A)(2) of this section or an act that would be
an offense of violence if committed by an adult and in which an alleged
victim of the violation or offense
was a child who was less than thirteen years of age
when the complaint
was filed, the prosecution may file a motion with the juvenile
judge requesting the judge to order the testimony of the child
victim to be taken outside of the room in which the proceeding is
being conducted and be recorded for showing in the room in which
the proceeding is being conducted before the judge, the child who
is charged with the violation or act, and any other persons who would
have been present during the testimony of the child victim had it
been given in the room in which the proceeding is being
conducted. Except for good cause shown, the prosecution shall
file a motion under this division at least seven days
before the date of the
proceeding. The juvenile judge may issue the
order upon the
motion of the prosecution filed under this division, if the judge
determines that the child
victim is unavailable to testify in the room in which the
proceeding is being conducted in the physical presence of the
child charged with the violation or act, due to one or more of the
reasons set forth in division (E) of this section. If a juvenile
judge issues an order of that nature, the judge shall
exclude from the room
in which the testimony is to be taken every person except a
person described in division (A)(3) of this section. To
the extent feasible, any person operating the recording equipment
shall be hidden from the sight and hearing of the child victim
giving the testimony, in a manner similar to that described in
division (A)(3) of this section. The child who is charged
with the violation or act shall be permitted to observe and hear the
testimony of the child victim giving the testimony on a monitor, shall be
provided with an electronic means of immediate
communication with the attorney of the child who is charged with
the violation or act during the testimony, and shall
be restricted to a location from which the
child who is charged with the violation or act cannot be seen
or heard by the child victim giving the testimony, except on a
monitor provided for that purpose. The child victim giving the
testimony shall be provided with a monitor on which the child victim
can observe, while giving testimony, the child who is charged with the
violation or act. No order for the taking of testimony by recording
shall be issued under this division unless the provisions set
forth in divisions (A)(3)(a), (b), (c), and (d) of this
section
apply to the recording of the testimony.
(E) For purposes of divisions (C) and (D) of this section,
a juvenile judge may order the testimony of a child victim to be
taken outside of the room in which a proceeding is being
conducted if the judge determines that the child victim is
unavailable to testify in the room in the physical presence of
the child charged with the violation or act due to one or more of the
following circumstances:
(1) The persistent refusal of the child victim to testify
despite judicial requests to do so;
(2) The inability of the child victim to communicate about
the alleged violation or offense because of extreme fear, failure of
memory, or another similar reason;
(3) The substantial likelihood that the child victim will
suffer serious emotional trauma from so testifying.
(F)(1) If a juvenile judge issues an order pursuant to
division (C) or (D) of this section that requires the testimony
of a child victim in a juvenile court proceeding to be taken
outside of the room in which the proceeding is being conducted,
the order shall specifically identify the child victim to whose
testimony it applies, the order applies only during the testimony
of the specified child victim, and the child victim giving the
testimony shall not be required to testify at the proceeding
other than in accordance with the order. The authority of a
judge to close the taking of a deposition under division
(A)(3)
of this section or a proceeding under division (C) or (D) of this
section is in addition to the authority of a judge to close a
hearing pursuant to section 2151.35 of the Revised Code.
(2) A juvenile judge who makes any determination regarding
the admissibility of a deposition under divisions (A) and (B) of
this section, the videotaping of a deposition under division
(A)(3) of this section, or the taking of testimony outside
of the
room in which a proceeding is being conducted under division (C)
or (D) of this section, shall enter the determination and
findings on the record in the proceeding.
Sec. 2907.02. (A)(1) No person shall engage in sexual
conduct with another who is not the spouse of the offender or who
is the spouse of the offender but is living separate and apart
from the offender, when any of the following applies:
(a) For the purpose of preventing resistance, the offender
substantially impairs the other person's judgment or control by
administering any drug, intoxicant, or controlled
substance to the other person surreptitiously or by force, threat
of force, or deception.
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
(c) THE OFFENDER IS EIGHTEEN YEARS OF AGE OR OLDER AND HAS PREVIOUSLY BEEN
CONVICTED OF OR PLEADED GUILTY TO A VIOLATION OF SECTION 2907.02, 2907.03, OR
2907.04 of the Revised Code, AND THE OTHER PERSON IS THIRTEEN YEARS OF AGE OR OLDER BUT LESS
THAN SIXTEEN YEARS OF AGE, WHETHER OR NOT THE OFFENDER KNOWS THE AGE OF THE
OTHER PERSON.
(d) THE OFFENDER IS TEN OR MORE YEARS OF AGE OLDER THAN THE OTHER
PERSON, AND THE OTHER PERSON IS THIRTEEN YEARS OF AGE OR OLDER BUT LESS THAN
SIXTEEN YEARS OF AGE, WHETHER OR NOT THE OFFENDER KNOWS THE AGE OF THE OTHER
PERSON.
(e) The other person's
ability to resist or consent is
substantially impaired because of a mental or physical condition
or because of advanced age, and the offender knows or has
reasonable cause to believe that the other person's ability to
resist or consent is substantially impaired because of a mental
or physical condition or because of advanced age.
(2) No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by
force or threat of force.
(B) Whoever violates this section is guilty of
rape, a felony of the first degree. If the offender under
division
(A)(1)(a) of this section
substantially impairs the other person's judgment or control by administering
any controlled substance described in section 3719.41 of the
Revised Code
to the other person surreptitiously or by force, threat of force, or
deception, the prison term imposed upon the offender shall be one of the
prison
terms prescribed for a felony of the first degree in section 2929.14
of the Revised Code that is not less than five years.
If the offender under
division (A)(1)(b) of this section
purposely compels the victim
to submit by force or threat of force, whoever violates division (A)(1)(b)
of this section shall be imprisoned for life.
(C) A victim need not prove physical resistance to the
offender in prosecutions under this section.
(D) Evidence of specific instances of the victim's sexual
activity, opinion evidence of the victim's sexual activity, and
reputation evidence of the victim's sexual activity shall not be
admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, or the victim's past
sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue
in the case and that its inflammatory or prejudicial nature does
not outweigh its probative value.
Evidence of specific instances of the defendant's sexual
activity, opinion evidence of the defendant's sexual activity,
and reputation evidence of the defendant's sexual activity shall
not be admitted under this section unless it involves evidence of
the origin of semen, pregnancy, or disease, the defendant's past
sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only to
the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
(E) Prior to taking testimony or receiving evidence of any
sexual activity of the victim or the defendant in a proceeding
under this section, the court shall resolve the admissibility of
the proposed evidence in a hearing in chambers, which shall be
held at or before preliminary hearing and not less than three
days before trial, or for good cause shown during the trial.
(F) Upon approval by the court, the victim may be
represented by counsel in any hearing in chambers or other
proceeding to resolve the admissibility of evidence. If the
victim is indigent or otherwise is unable to obtain the services of
counsel, the court, upon request, may appoint counsel to
represent the victim without cost to the victim.
(G) It is not a defense to a charge under division (A)(2)
of this section that the offender and the victim were married or
were cohabiting at the time of the commission of the offense.
Sec. 2907.04. (A) No person who is eighteen years of age or older shall
engage in sexual conduct with another, who is not the spouse of the offender,
when the offender knows the other person is thirteen years of age
or older
but less than sixteen years of age, or the offender is reckless in that
regard.
(B) Whoever violates this section is guilty of corruption of SEXUAL
ASSAULT ON a minor, a
felony of the fourth degree. If the offender is less than four
years older
than the other person, corruption of SEXUAL ASSAULT ON a minor
is a misdemeanor of the first degree.
Section 2. That existing sections 2151.14, 2151.315, 2151.3511, 2907.02, and
2907.04 of the Revised Code are hereby repealed.
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