DIVISION OF CHILD ABUSE AND DOMESTIC VIOLENCE
Department for Human Support Services
Cabinet for Health and Family Services
Child Sexual Abuse
Crimes of child sexual abuse may be prosecuted under a variety of charges. Some sexual crimes may be committed against either children or adults, such as those are listed in KRS Chapter 510 governing sexual offenses. Other sexual crimes, such as those in KRS Chapters 530 and 531, governing unlawful transactions with a minor and the sexual exploitation of minors, are unique to child victims.
Sexual Crimes Involving a Child Victim
A sexual offense involving a child may be prosecuted as a crime of rape or other kind of sexual assault, all of which may be committed against both adult and child victims. What makes a sexual act criminal under those statutes is the victim's lack of consent. According to Kentucky law, lack of consent results from forcible compulsion or the incapacity to consent. Where the perpetrator is charged with the crime of sexual abuse, lack of consent results when circumstances show that the victim did not expressly or impliedly agree in the actor’s conduct. Children under the age of sixteen are deemed legally incapable of giving consent. KRS 510.020(3)(a).
Sexual Crimes Unique to a Child Victim
In addition to the crimes of rape, sodomy, and sexual abuse, there are certain sexual offenses unique to cases involving child victims. KRS Chapter 531 sets forth seven separate offenses, which constitute the sexual exploitation of minors. Other sections of the penal code criminalize certain conduct as it relates specifically to the child victim.
1. Use of a Minor in a Sexual Performance
a) Elements of the Crime
A perpetrator commits the crime of use of a minor in a sexual performance when: he "employs, consents to, authorizes or induces a minor to engage in a sexual performance." KRS 531.310. A "performance" is defined as "any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience." KRS 531.300(5). A sexual performance is one involving "sexual conduct". KRS 531.300(6). Sexual conduct is a broad term including: a) acts of masturbation, homosexuality, sexual intercourse -- whether actual or simulated; b) physical contact with or willful or intentional exhibition of the genitals; c) flagellation or excretion for the purpose of sexual stimulation or gratification; or d) the exposure in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breasts . . . in any motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private family nature not intended for distribution outside the family." KRS 531.300(4).
The seriousness of the crime committed depends upon the age of the victim involved and whether he or she sustains physical injury. If the child is physically injured in the course of the performance, the crime is a Class A felony. If the child is less than age sixteen, the crime is a Class B felony, and if the child is less than eighteen, it is a Class C felony.
Physical contact with the minor is not required for conviction under this statute. Alcorn v. Com., Ky.App., 910 S.W.2d 716 (1995). An action where the offender paid a child to expose his genitals while defendant masturbated violated statute. Id. However, this crime does not apply where an individual actively participates in sexual activity with the victim. See Allen v. Com., Ky.App., 997 S.W.2d 483 (1999). Evidence that the minor participated in sexual conduct with each customer was insufficient to convict defendant, who promoted prostitution, of using minor in a sexual performance. The minor did more than merely exhibit herself to the customer with the customer as the audience. Defendant was properly charged and convicted for the crime of promoting prostitution.
b). Private, family nature
Much of the case law interpreting this statute has revolved around various defenses offered to the crime, particularly defenses based upon the meaning of the term "audience" and the scope of the family exception (i.e., private, family nature). In Alcorn v. Commonwealth, Ky.App., 910 S.W.2d 716 (1995), the Court of Appeals held that the perpetrator had committed the crime of using a minor in a sexual performance even though there was no one there besides the victim and perpetrator. The Court recognized that "we are all too aware that many types of deviate acts do not take place in the presence of two or more people. We hold that for the purposes of KRS 531.300(5) an audience may consist of one person, such as the accused herein." Alcorn, 910 S.W.2d at 717. In another case, the perpetrator attempted to justify as within the private family matter exception, his actions of forcing his step-daughters to disrobe while he stared at them, claiming such was a form of discipline. Gilbert v. Commonwealth, Ky., 838 S.W.2d 376 (1992). The Supreme Court soundly rejected the assertion:
An adult stepfather who forces his three teenage daughters, ages 17, 16 and 15 to strip naked cannot be considered to be engaged in a family discipline. Clearly this is not typical or normal family behavior under any standard. The acts were obscene and appealed to Johnny Gilbert's prurient interest in sexual conduct involving minors in violation of KRS 531.300(3).
Gilbert, 838 S.W.2d at 379-380.
Most importantly, the fact that the minor was willing to engage in the sexual performance provides the perpetrator with no defense. "The statute was designed to protect minors from exploitation regardless of whether their participation was voluntary. "Indeed, 'employs, consents to, authorizes or induces' all imply the possibility of voluntary participation by a minor, as the idea of force or coercion is not ordinarily conveyed by those words." Holbrook v. Commonwealth, Ky.App., 662 S.W.2d 484, 488 (1984).
2. Promoting a Sexual Performance By a Minor
Another crime of sexual exploitation of a minor is that of promoting a sexual performance by a minor. A perpetrator promotes a sexual performance by a minor when "knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a minor." KRS 531.320. Performance, sexual performance, and sexual conduct are all defined by the Code as stated above. The penalty provisions are also identical to that the of using a minor in a sexual performance: Class C felony if the child is less than eighteen, Class B if the child is less than sixteen, and Class A if the child sustains physical injury. KRS 531.320.
3. Possession or Distribution of matter portraying a sexual performance by a minor
A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he knowingly has in his possession or control any matter which visually depicts an actual sexual performance by a minor person. Possession of matter portraying a sexual performance by a minor is a Class A misdemeanor for the first offense and a Class D felony for the second and subsequent offenses. KRS 531.335.
A person is guilty of distribution of matter portraying a sexual performance of a minor when, having knowledge of its content and character, he (1) sends or causes to be sent into this state for sale or distribution; (2) brings or causes to be brought into this state for sale or distribution; or (3) in this state, he exhibits for profit or gain, distributes, or possesses with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying the sexual performance of a minor. Distribution of a matter portraying a sexual performance of a minor is a Class D felony.
4. Promoting sale of or advertising material portraying a sexual performance of a minor
A person is guilty of promoting sale of material portraying a sexual performance of a minor when he knowingly, as a condition of a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter portraying a sexual performance by a minor …. KRS 531.350. Promoting the sale of a matter portraying a sexual performance by a minor is a Class A misdemeanor for the first offense and a Class D felony for the second offense and a Class C felony of each subsequent offense.
A person is guilty of advertising material portraying a sexual performance by a minor when having knowledge of its content and character thereof, he writes or creates advertising or solicits anyone to publish such advertising or otherwise promotes the sale or distribution of matter portraying a sexual performance by a minor. KRS 531.360. Advertising material portraying a sexual performance of a minor is a Class A misdemeanor.
5. Using minors to distribute material portraying a sexual performance of a minor
A person is guilty of using minors to distribute material portraying a sexual performance by a minor when knowing a person to be a minor or having possession of such facts that he should reasonably know such person is a minor, and knowing of the content and character of the material, he knowingly hires, or employs, or uses a minor to do or assist in doing any acts constituting distribution of a matter portraying a sexual performance by a minor. KRS 531.370.
6. Unlawful transaction with a minor
Finally, a perpetrator is guilty of unlawful transaction with a minor in the first degree when he "knowingly, induces, assists, or causes a minor to engage in illegal sexual activity except those offenses involving minors in KRS Chapter 531 and KRS 529.030 [sexual exploitation of a minor and promoting prostitution in the first degree, respectively]." KRS 530.064. The penalty provisions are identical to those in the above crimes.
SPECIAL PROVISIONS IN THE INVESTIGATION AND PROSECUTION OF CRIMES OF CHILD SEXUAL ABUSE
Investigation of Crimes of Child Sexual Abuse (KRS 431.600)
To minimize further trauma to child victims and to promote thorough and efficient investigations of these crimes, Kentucky statutes mandate specialized procedures for the investigation of reported or suspected sexual abuse of a child. KRS 431.600. Multidisciplinary teams, composed of law enforcement officers and social workers, conduct such investigations. In addition, other members of the multidisciplinary teams may be: Commonwealth's and county attorneys, children’s advocacy centers, mental health professionals, medical professionals, victim advocates, educators, and other related professionals. Such teams operate pursuant to protocols and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse and promulgated by the Attorney General, as well as pursuant to local protocols as approved by the Kentucky Multidisciplinary Commission on Child Sexual Abuse.
Commonwealth's attorneys, county attorneys and the Cabinet for Human Resources must minimize the involvement of the child in legal proceedings, "avoiding appearances at preliminary hearings, grand jury hearings, and other proceedings when possible." KRS 431.600(6). Commonwealth attorneys and county attorneys must familiarize the child victims with the proceedings, which will be conducted. KRS 431.600(4). If adequate personnel are available, each Commonwealth attorney's and each county attorney's office shall have a child sexual abuse specialist, and each office shall provide for one lead prosecutor on the case. KRS 431.600(3) and (5). To the extent practicable and when in the best interest of the child alleged to have been abused, all interviews shall be conducted in a children’s advocacy center. KRS 431.600(8).
When a decision is made NOT to prosecute a case, the Commonwealth attorney or the county attorney shall refer the victim for counseling and other appropriate services and shall explain the decision not to prosecute. KRS 431.600(7).
Child Witnesses (KRS 421.350)
In certain types of cases, children may testify by videotape or closed circuit television and be spared the psychological hardship of having to confront their perpetrator in the courtroom. KRS 421.350. Such testimony is available for prosecution "including but not limited to" offenses of rape, sodomy, sexual abuse, sexual misconduct, and indecent exposure (KRS 510.040 to 510.150), promoting prostitution (KRS 529.030 to 529.050), permitting prostitution (KRS 529.070), incest (KRS 530.020), endangering the welfare of a child (KRS 530.060), unlawful transaction with a minor (KRS 530.064), use of a minor in a sexual performance (KRS 531.310), promoting the sexual performance of a minor (KRS 531.320), using minors to distribute material portraying a sexual performance by a minor (KRS 531.370), and all dependency proceedings pursuant to KRS Chapter 620. KRS 421.350(1).
In order for the child to testify by videotape or closed circuit television, the crime must have been committed against a child twelve years of age or younger, and the child must be either the victim of or a witness to that offense. KRS 421.350(1). Finally, the court will permit such testimony only upon the filing of a motion for such and upon the finding of a compelling need on the part of the child witness, compelling need being defined as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." KRS 421.350(5). The Kentucky Supreme Court enumerated certain factors a trial court should consider in making a compelling need determination: "the trial court must have wide discretion to consider the age and demeanor of the child witness, the nature of the offense and the likely impact of testimony in court or facing the defendant." Com v. Willis, Ky., 716 S.W.2d 224, 301 (1986) (emphasis added). Danner v. Com., Ky., 963 S.W.2d 632, 634 (1998).
Other factors a trial court should consider when making a compelling need determination, especially in a case where the child is older than twelve, are the age of the victim, and the time which has elapsed from the crime to the date of trial. Id. In Danner, the Court allowed the 15-year-old victim, who was defendant's daughter and was between five and ten years old at time of alleged offenses, to testify through closed circuit television. The Kentucky Supreme Court held that to do so was not abuse of discretion in prosecution for sodomy. The court found that due to nature of testimony and age of victim that face-to-face arrangement would inhibit victim to a degree that jury's search for truth would be clouded.
A child may testify outside the courtroom by two different methods. The child may testify by closed circuit television or by recorded videotape for viewing in the courtroom by the court and the jury. KRS 421.350(2) and (3). Under both methods, "only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony." KRS 421.350(2) and (3). The individuals operating the equipment must be confined from the child's sight and hearing. The court "shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant." KRS 421.350(2) and (3). In addition, for videotaped testimony, the court must fulfill additional requirements to ensure the accuracy of the recording and the identifiability of the voices on it. KRS 421.350.
Child Sexual Abuse Accommodation Syndrome
Courts in some states have permitted the introduction into evidence of expert testimony concerning Child Sexual Abuse Accommodation Syndrome. This Syndrome may be displayed in children who are victims of sexual abuse. They may exhibit secrecy, helplessness, entrapment and accommodation, delay in disclosure, and retraction. Lantrip v. Com., Ky., 713 S.W.2d 816 (1986). However, the Kentucky Supreme Court has consistently ruled that evidence of the Child Sexual Abuse Accommodation Syndrome is inadmissible in Kentucky courts. Lantrip, supra., Hellstrom v. Com., Ky., 825 S.W.2d 612, 613-614 (1992)(and cases cited therein). In its most recent visitation of the issue, the Kentucky Supreme Court held that expert testimony may not be offered even in rebuttal by the prosecution for the very limited purpose of explaining the psychological dynamics surrounding a recantation. Such testimony would have explained various reasons child victims sometimes recant their testimony, such as threats, imposition of blame, fear of loss of home, and fear of the legal system. Newkirk v. Com., Ky., 937 S.W.2d 690 (1996).
Testimonial Privileges in Cases of Child Abuse
Only attorneys and members of the clergy are exempted from mandatory reporting of child abuse or testifying in court in cases of child abuse. According to Kentucky statute, "neither the husband-wife nor any professional-client/patient privilege, except the attorney-client and clergy-penitent privilege, shall be a ground for refusing to report under this section or for excluding evidence regarding a dependent, neglected, or abused child or the cause thereof, in any judicial proceedings resulting from a report pursuant to this section." KRS 620.050(2). See Mullins v. Com., Ky., 956 S.W.2d 210 91997)