AB78_EN

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

CHAPTER..........

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

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

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

200.366 1. A person who subjects another person to sexual

penetration, or who forces another person to make a sexual

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

the victim or under conditions in which the perpetrator knows or

should know that the victim is mentally or physically incapable of

resisting or understanding the nature of his conduct, is guilty of

sexual assault.

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

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

category A felony and shall be punished:

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

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

of the sexual assault, by imprisonment in the state prison:

(1) For life without the possibility of parole;

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

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

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

beginning when a minimum of 15 years has been served.

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

imprisonment in the state prison:

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

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

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

beginning when a minimum of 10 years has been served.

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

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

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

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

imprisonment in the state prison for life without the possibility of

parole.

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

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

imprisonment in the state prison:

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

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

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

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

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

imprisonment in the state prison for life with the possibility of

parole, with eligibility for parole beginning when a minimum of 20

years has been served.

4. A person who commits a sexual assault against a child

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

of:

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

sexual offense against a child; or

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

committed in this state, would constitute a sexual assault pursuant

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

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

imprisonment in the state prison for life without the possibility of

parole.

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

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

constituting:

(a) Incest pursuant to NRS 201.180;

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

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

pursuant to NRS 201.560, if punished as a felony.

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

201.230 1. A person who willfully and lewdly commits any

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

sexual assault, upon or with the body, or any part or member

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

arousing, appealing to, or gratifying the lust or passions or sexual

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

child.

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

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

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

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

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

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

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

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

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

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

been previously convicted of:

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

sexual offense against a child; or

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

committed in this state, would constitute lewdness with a child

pursuant to this section or any other sexual offense against a

child,

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

imprisonment in the state prison for life without the possibility of

parole.

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

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

NRS 200.366.

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

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

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

district court upon verdict or plea of:

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

degree, sexual assault, attempted sexual assault of a child who is

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

201.230, an offense for which the suspension of sentence or the

granting of probation is expressly forbidden, or if the person is

found to be a habitual criminal pursuant to NRS 207.010, a

habitually fraudulent felon pursuant to NRS 207.014 or a habitual

felon pursuant to NRS 207.012, the court shall not suspend the

execution of the sentence imposed or grant probation to the person.

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

paragraph, the court shall suspend the execution of the sentence

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

deems advisable, decide not to suspend the execution of the

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

the crime was committed, the person:

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

elsewhere, for a felony conviction;

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

this state or elsewhere, for a felony conviction; or

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

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

crime or of this state would amount to a felony.

If the person denies the existence of a previous conviction, the court

shall determine the issue of the previous conviction after hearing all

relevant evidence presented on the issue by the prosecution and the

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

of a previous conviction. For the purposes of this paragraph, a

certified copy of a felony conviction is prima facie evidence of

conviction of a prior felony.

court may suspend the execution of the sentence imposed and grant

probation as the court deems advisable.

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

court shall not consider whether the person has the financial ability

to participate in a program of probation secured by a surety bond

established pursuant to NRS 176A.300 to 176A.370, inclusive.

3. The court shall consider the standards adopted pursuant to

NRS 213.10988 and the recommendation of the Chief Parole and

Probation Officer, if any, in determining whether to grant probation

to a person.

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

probation but requires more supervision than would normally be

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

sentencing him to a term of imprisonment, grant him probation

pursuant to the Program of Intensive Supervision established

pursuant to NRS 176A.440.

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

is convicted of a felony and the Division is required to make a

presentence investigation and report to the court pursuant to NRS

176.135, the court shall not grant probation to the person until the

court receives the report of the presentence investigation from the

Chief Parole and Probation Officer. The Chief Parole and Probation

Officer shall submit the report of the presentence investigation to

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

presentence investigation from the county clerk. If the report of the

presentence investigation is not submitted by the Chief Parole and

Probation Officer within 45 days, the court may grant probation

without the report.

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

probation, the court shall, when determining the conditions of that

probation, consider the imposition of such conditions as would

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

the support of a child and the payment of any such obligation which

is in arrears.

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

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

suspend the sentence of a person convicted of an offense listed in

subsection 3 unless:

(a) If a psychosexual evaluation of the person is required

pursuant to NRS 176.139, the person who conducts the

psychosexual evaluation certifies in the report prepared pursuant to

NRS 176.139 that the person convicted of the offense does not

represent a high risk to reoffend based upon a currently accepted

standard of assessment; or

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

pursuant to NRS 176.139, a psychologist licensed to practice in this

state who is trained to conduct psychosexual evaluations or a

psychiatrist licensed to practice medicine in this state who is

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

and is trained to conduct psychosexual evaluations certifies in a

written report to the court that the person convicted of the offense

does not represent a high risk to reoffend based upon a currently

accepted standard of assessment.

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

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

of action against the State, its political subdivisions, or the agencies,

boards, commissions, departments, officers or employees of the

State or its political subdivisions for not certifying a person pursuant

to this section or for refusing to consider a person for certification

pursuant to this section.

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

any of the following offenses:

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

or older pursuant to NRS 200.366.

(b) Statutory sexual seduction pursuant to NRS 200.368.

NRS 200.400.

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

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

NRS 200.710 to 200.730, inclusive.

(f) Incest pursuant to NRS 201.180.

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

infamous crime against nature pursuant to NRS 201.195.

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

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

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

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

NRS 201.450.

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

pursuant to NRS 201.560, if punished as a felony.

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

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

(b) to [(m), inclusive.

(o)] (l), inclusive.

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

sexually motivated pursuant to NRS 207.193.

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

thereto a new section to read as follows:

“Offender” means a sex offender or an offender convicted of a

crime against a child.

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

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

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

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

ascribed to them in those sections.

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

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

by the Director, establish within the Central Repository a program to

provide the public with access to certain information contained in

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

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

means of communication to provide the public with access to certain

information contained in the statewide registry if such information is

made available and disclosed in accordance with the procedures set

forth in this section.

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

behalf of a requester seeking information from the program, the

requester must provide his name, address and telephone number and

the following information concerning the identity of the subject of

the search:

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

following items:

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

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

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

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

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

the following items:

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

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

(3) The approximate height and weight of the subject of the

search; and

(4) The approximate age of the subject of the search.

After conducting a search based upon information provided

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

the requester to provide additional information to confirm the

identity of the subject of the search. The additional information may

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

vehicle frequently driven by the subject of the search, the employer

of the subject of the search or any information listed in paragraph

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

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

of a requester,] For each inquiry to the program, the requester

must provide:

(a) The name of the subject of the search;

(b) Any alias of the subject of the search;

the subject of the search; or

(d) Any other information concerning the identity or location

of the subject of the search that is deemed sufficient in the

discretion of the Department.

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

the Central Repository shall:

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

offenders pursuant to NRS 179D.730; and

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

from disclosing information concerning certain offenders, even if

those offenders are listed in the statewide registry.

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

information provided by the requester concerning the identity or

location of the subject of the search, the Central Repository:

(a) Shall disclose to the requester information concerning an

offender who is assigned a Tier 3 level of notification.

(b) Except as otherwise provided in this paragraph, may, in the

discretion of the Department, disclose to the requester information

concerning an offender who is assigned a Tier 2 level of

notification. The Central Repository shall not disclose to the

requester information concerning an offender who is assigned a

Tier 2 level of notification if the offender:

(1) Has been released from actual custody for 10 years or

more; and

(2) Has not been convicted of committing a sexual offense

during the immediately preceding 10 years.

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

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

the Central Repository shall inform the requester that:

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

the information provided by the requester concerning the identity or

location of the subject of the search;

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

information that is available to the public through the statewide

registry;

concerning the identity or location of the subject of the search

before the Central Repository may disclose the results of the search;

[(c) A person]

(d) An offender listed in the statewide registry matches the

information provided by the requester concerning the identity or

location of the subject of the search. If a search of the statewide

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

Repository:

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

the offender and the zip codes of the residence, work place and

school of the offender.

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

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

offense in language that is understandable to the ordinary

layperson, and the date and location of each conviction.

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

and offender at the time of each offense.

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

or other electronic means of communication, provide the requester

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

such an image is available.

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

information that is included in the record of registration for the

[subject of the search.

4.] offender.

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

(a) Charge a fee to the requester;

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

requester to the Central Repository and the information provided by

the Central Repository to the requester . [; and

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

of another person and that such misuse of information obtained

through the program may subject the requester to criminal

prosecution or civil liability for damages.

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

program as a substitute for information relating to sexual offenses

that must be provided by the Central Repository pursuant to NRS

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

8. The provisions of this section do not prevent law

enforcement officers, the Central Repository and its officers and

employees, or any other person from:

(a) Accessing information in the statewide registry pursuant to

NRS 179B.200;

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

law.

Sec. 8. NRS 179B.260 is hereby repealed.

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

committed before October 1, 2003, for the purpose of determining

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

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

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