Req. No. 1438 Page 1 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 884 By: Boren
AS INTRODUCED
An Act relating to crimes and punishments; amending
21 O.S. 2021, Section 843.5, which relates to
penalties for child abus e; providing duress by abuse
affirmative defense for persons accused of certain
crimes; providing evidentiary requirements; stating
alternative punishment for persons who successfully
assert duress by abuse defense; provi ding an
exception; providing procedures and guidelines for
needs assessments and recovery plans; stating time
limitation for completion of recovery plan; stating
penalty for persons who unsuccessfully complete
recovery plan; providing requirements for crea ting
needs assessments and recovery plans; authorizing the
filing of petitions for post-conviction relief under
certain circumstances; directing alleged perpetrators
of abuse to pay certain costs; defining term s; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLA HOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, Section 843.5, is
amended to read as follows:
Section 843.5. A. Any person who shall willfully or
maliciously engage in child abuse , as defined in this section,
shall, upon conviction, b e guilty of a felony punishable by
imprisonment in the custody of the Department of Corrections not
Req. No. 1438 Page 2 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
exceeding life imprisonment, or by impri sonment in a county jail not
exceeding one (1) year, or by a fine of not less than Five Hundred
Dollars ($500.00) no r more than Five Thousand Dollars ($5,000.00),
or both such fine and imprisonment.
B. Any person responsible for the health, safety or w elfare of
a child who shall willfully or maliciously engage in enabl ing child
abuse, as defined in this section, shall, upon conviction, be
punished by imprisonment in the custody of the Department of
Corrections not exceeding life imprisonment, or by impr isonment in a
county jail not exceeding one (1) year, or by a fine o f not less
than Five Hundred Dollars ($500.00) nor more than Five Thousand
Dollars ($5,000.00) or both such fine a nd imprisonment.
C. Any person responsible for the health, safety or w elfare of
a child who shall willfully or maliciously engage in child ne glect,
as defined in this section, shall, upon conviction, be punished by
imprisonment in the custody of the Dep artment of Corrections not
exceeding life imprisonment, or by imprisonmen t in a county jail not
exceeding one (1) year, or by a fine of not less than Five Hundred
Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00),
or both such fine and impr isonment.
D. Any parent or other person who shall willfully or
maliciously engage in enabling child neglect shall, upon conviction,
be punished by imprisonment in the custody of the Department o f
Corrections not exceeding life imprisonment, or by impris onment in a
Req. No. 1438 Page 3 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
county jail not exceeding one (1) year, or by a fine of not less
than Five Hundred Dollars ($500.00) nor more than Five Thousand
Dollars ($5,000.00), or both such fine and imprisonment .
E. Any person responsible for the health, safety or wel fare of
a child who shall willfully or maliciously engage in child sexu al
abuse, as defined in this section, shall, upon conviction, be
punished by imprisonment in the custody of the Department of
Corrections not exceeding life imprisonment, or by imprison ment in a
county jail not exceeding one (1) year, or by a fine of not l ess
than Five Hundred Dollars ($500.00) nor more than Five Thousand
Dollars ($5,000.00), or both such fine and imprisonment, exc ept as
provided in Section 51.1a of this title or as othe rwise provided in
subsection F of this section for a child victim under twelve (12)
years of age. Except for persons sentenced to life or life with out
parole, any person sentenced to imprisonment fo r two (2) years or
more for a violation of this subsectio n shall be required to serve a
term of post-imprisonment supervision pu rsuant to subparagraph f of
paragraph 1 of subsection A of Section 991a of Ti tle 22 of the
Oklahoma Statutes under conditions de termined by the Department of
Corrections. The jury shall be advised that the mandatory post -
imprisonment supervision shall be in addition to the actual
imprisonment.
F. Any person responsible for the he alth, safety or welfare of
a child who shall willfully or maliciously engage in child sexual
Req. No. 1438 Page 4 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
abuse, as defined in this section, to a child under twelve (12)
years of age shall, upon conviction, be punished by imprisonment in
the custody of the Department o f Corrections for not less than
twenty-five (25) years nor more than life imprisonment, and by a
fine of not less than Five Hundred Dollars ($500.00) nor more than
Five Thousand Dollars ($5,000.00).
G. Any parent or other person who shall willfully or
maliciously engage in enabling child sexual abuse shal l, upon
conviction, be punished by imprisonment in the custody of the
Department of Corrections not exceeding life imprisonm ent, or by
imprisonment in a county jail not exceeding one (1) year, or by a
fine of not less than Five Hundred Dollars ($500.00) no r more than
Five Thousand Dollars ($5,000.00), or both such fine and
imprisonment.
H. Any person who shall willfully or maliciously engage in
child sexual exploitation , as defined in this section, shall, upon
conviction, be punished by imprisonment in the custody of the
Department of Corrections not exceedi ng life imprisonment, or by
imprisonment in a county jail not exceed ing one (1) year, or by a
fine of not less than Five Hundred Dollars ($500.00) nor m ore than
Five Thousand Dollars ($5,000.00), or both such fine and
imprisonment except as provided in sub section I of this section for
a child victim under twelve (12) years of age. Except for persons
sentenced to life or life without parole, any person se ntenced to
Req. No. 1438 Page 5 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
imprisonment for two (2) years or more f or a violation of this
subsection shall be required t o serve a term of post-imprisonment
supervision pursuant to subparag raph f of paragraph 1 of subsection
A of Section 991a of Title 22 of the Oklahoma St atutes under
conditions determined by the Departmen t of Corrections. The jury
shall be advised that the mandatory post-imprisonment supervision
shall be in addition to the actual imprisonment.
I. Any person who shall willfully or maliciously engage in
child sexual exploitation, as defined in this section , of a child
under twelve (12) years of age shall, upon conviction, be punished
by imprisonment in the custody of the Department of Corrections for
not less than twenty -five (25) years nor more than life
imprisonment, and by a fine of not less than Five Hu ndred Dollars
($500.00) nor more than Five Thousand Dollars ($5,000.00).
J. Any person responsible for the health, s afety or welfare of
a child who shall willfully or maliciously engage in enabling child
sexual exploitation, as defined in this section , shall, upon
conviction, be punished by imprisonment i n the custody of the
Department of Corrections not exceeding life imprisonment, or by
imprisonment in a county jail not exceeding one (1) year, or by a
fine of not less than Five Hundred Dollars ($500.00) nor more than
Five Thousand Dollars ($5,000.00), or both such fine and
imprisonment.
Req. No. 1438 Page 6 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
K. Notwithstanding any other provision of law, an y person
convicted of forcible anal or oral sodomy, rape, rape by
instrumentation, or lewd molestation of a child under f ourteen (14)
years of age subsequent to a previou s conviction for any offense of
forcible anal or oral sodomy, rap e, rape by instrumentation, or lewd
molestation of a child under fourteen (14) years of age shall be
punished by death or by imprisonment for life without parole.
L. Provided, however, that nothing contained in this section
shall prohibit any parent or g uardian from using reasonable and
ordinary force pursuant to Section 844 of this title.
M. Consent shall not be a defense for any violation pr ovided
for in this section.
N. Notwithstanding the age requirements of other statutes
referenced within this s ection, this section shall apply to any
child under eighteen (18) years of age.
O. A person who is charged with willfully or maliciously
engaging in enabling child abuse, enabling child neglect, enabling
child sexual abuse, or enabling child sexual exploitation pursuant
to the provisions of this section shall be entitled to assert the
affirmative defense of duress by abuse if the person had a
reasonable apprehension that acting to stop or preve nt the child
abuse, child neglect, child sexual abuse or child sexual
exploitation would result in imminent intimate partner abuse to
himself or herself in retaliation.
Req. No. 1438 Page 7 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
P. Duress by abuse may be shown by dir ect or indirect evidence
including, but not limited to, medical testimony or evidence, expert
testimony by a psychologist, psychiatrist , other expert witness or
any combination thereof.
Q. A person who successfully asserts the affirmative defense of
duress by abuse when charged with willfully or maliciously engaging
in enabling child abuse, enabling child neglect, enabling child
sexual abuse, or enabling child sexual exploitation shall be ordered
by the court to participate and complete a needs assessment and
recovery plan.
R. A person found guilty of willfully or maliciously engaging
in enabling child abuse, enabling child neglect, enabling child
sexual abuse, or enabling child sexual exploitation, who a sserts the
affirmative defense of duress by abuse may be ordered by the court
to participate and c omplete a needs assessment and recovery plan in
lieu of a conviction and punishment at the discretion of the court.
Provided, the court shall not order the p erson to participate and
complete the needs assessment and recovery plan if the person
refuses to cooperate in the criminal proceedings or the court makes
specific findings that having the person participate and complete
the needs assessment and recovery p lan in lieu of a conviction and
punishment would create an undue risk to public safety or the
health, safety, and welfare of the victim.
Req. No. 1438 Page 8 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
S. A recovery plan shall not exceed two (2) years in length and
shall consist of medica l, social and psychologi cal services as may
be deemed beneficial to aid the person in the cessation of
victimization, recovery fr om mental or physical abuse trauma or
other needs identified bearing connection with the alleged abuse
suffered by the person.
T. 1. If a needs assessment and recovery plan is ordered by
the court for a person convicted of willfully or maliciously
engaging in enabling child abuse, enabling child neglect, enabling
child sexual abuse, or enabling child sexual exploitation , the
person shall have two (2) years to complete the court-approved
recovery plan under the deferred sentencing procedure provided for
in Section 991c of Title 22 of the Oklahoma Statu tes. The court may
extend this time if the court determines that it is reasonable and
necessary for the person to successfully complete the recovery plan.
2. Should the person fail to complete the recovery p lan within
two (2) years or if the person commits or enables the commis sion of
any subsequent crime of child abuse, child neglect, child sexual
abuse or child sexual exploitation, the person shall be sentenced
for the offense as provided for in the provisions of this section.
3. The needs assessment and recovery plan program shall be
created by a private facility or organization that has been
certified by the Office of the Attorney General as a certified
domestic violence program or certified s exual assault program
Req. No. 1438 Page 9 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
pursuant to the provisions of Section 18p-6 of Title 74 of the
Oklahoma Statutes and shall be filed with the court. In
consultation with the Depart ment of Human Services, the recovery
plan shall address the recovery needs of any child associated with
or living in the home of the person including home visitations by
personnel of the Department of Human Services.
U. Any person convicted of a misdemean or or felony under the
provisions of subsections B, D, G or J of this section who, prior to
the effective date of this act , would have been authorized to assert
the defense of abuse by duress may file a petition for post-
conviction relief without regard t o the limitations of Section 1086
of Title 22 of the Oklahoma Statutes so long as the petition for
post-conviction relief is filed within five (5 ) years of the
effective date of this act. Upon filing the petition for post-
conviction relief, the court shall retroactively apply the
provisions of subsections M, N, O, P and Q of this section .
V. The person accused of abusing the individual charged un der
the provisions of su bsection B, D, G or J of this section shall be
required to cover all costs of the needs assessment and recovery
plan of the individual charged.
O. W. As used in this section:
1. "Child abuse" means:
a. the willful or malicious harm or threatened harm or
failure to protect from harm or threat ened harm to the
Req. No. 1438 Page 10 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
health, safety or welfare of a child under eighteen
(18) years of age by a person re sponsible for a
child's health, safety or welfare, or
b. the act of willfully or maliciously injuring,
torturing or maiming a child under eighteen (18) years
of age by any person ;
2. "Child neglect" means the willful or malicious neglect, as
defined by Section 1-1-105 of Title 10A of the Oklahom a Statutes, of
a child under eighteen (18) years of age by a person responsible for
a child's health, safety or welfare;
3. "Child sexual abuse" means the willful or malicious sexual
abuse of a child under eighteen (18) years of age by a person
responsible for a child's health, safety or welfare and includes,
but is not limited to:
a. sexual intercourse,
b. penetration of the vagin a or anus, however slight, by
an inanimate object or any part of the human body not
amounting to sexual intercourse,
c. sodomy,
d. incest, or
e. a lewd act or proposal, as defined in this section;
4. "Child sexual exploitation " means the willful or malicious
sexual exploitation of a child under eighteen (18) years of age by
another and includes, but is not limited to:
Req. No. 1438 Page 11 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
a. human trafficking, as provided for in Se ction 748 of
this title, if the offense involved child trafficking
for commercial sex,
b. trafficking in children, as provided for in Section
866 of this title, if the offense was com mitted for
the sexual gratification of any person,
c. procuring or causing the participation of a minor in
child pornography, as provided for in Section 1021.2
of this title,
d. purchase, procurement or possession of child
pornography, as provided for in S ection 1024.2 of this
title,
e. engaging in or soliciting prostitution, a s provided
for in Section 1029 of this title, if the offense
involved child prostitution,
f. publication, distribution or participa tion in the
preparation of obscene material, as prov ided for in
Section 1040.8 of this title, if the offense involved
child pornography,
g. aggravated possession of child pornography, as
provided for in Section 1040.1 2a of this title,
h. sale or distribution of obscene material, as provided
for in Section 1040.13 of this title,
Req. No. 1438 Page 12 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
i. soliciting sexual conduct or communication with a
minor by use of technology, as provided for in Section
1043.13a of this title,
j. offering or transporting a child for purposes o f
prostitution, as provided for in Section 1087 of this
title, and
k. child prostitution, as provided for in Section 1088 of
this title;
5. "Enabling child abuse " means the causing, procuring or
permitting of child abuse by a person responsible for a child's
health, safety or welfare;
6. "Enabling child neglect" means the causing, procuring or
permitting of child neglect by a person responsible for a child's
health, safety or welfare;
7. "Enabling child sexua l abuse" means the causing, procuring
or permitting of child sexual abuse by a person responsible for a
child's health, safety or welfare;
8. "Enabling child sexual explo itation" means the causing,
procuring or permitting of child sexual exploitation by a person
responsible for a child's health, safety or welfare;
9. "Incest" means marrying, committi ng adultery or fornicating
with a child by a person responsible for the health, safety or
welfare of a child;
Req. No. 1438 Page 13 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
10. "Intimate partner abuse" means a pattern or series of
actions or omissions and verbal or nonverbal communication that are
used to harm another person physically or mentally or to exert po wer
and control over another pe rson. Intimate partner abuse may include
one or more of the following acts:
a. Physical violence,
b. Sexual violence,
c. Stalking,
d. Psychological aggression , or
e. Use of coercive tactics.
Intimate partner abuse may be co mmitted by a current or former
spouse, boyfriend, girlfriend , or ongoing sexual partner.
10. 11. "Lewd act or proposal" means:
a. making any oral, written or electronic or computer-
generated lewd or indecent pr oposal to a child for the
child to have unlawful sexual relations or sexual
intercourse with any pers on,
b. looking upon, touching, mauling or feeling the body or
private parts of a child in a lewd or la scivious
manner or for the purpose of sexual gratific ation,
c. asking, inviting, enticing or persuading any child to
go alone with any person to a seclude d, remote or
secret place for a lewd or lascivious purpose,
Req. No. 1438 Page 14 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
d. urinating or defecating upon a child or causing,
forcing or requiring a child to defecate or urinate
upon the body or private parts of an other person for
the purpose of sexual gratification,
e. ejaculating upon or in the presence of a child,
f. causing, exposing, forci ng or requiring a child to
look upon the body or private parts of another perso n
for the purpose of sexual gratification,
g. causing, forcing or req uiring any child to view any
obscene materials, child pornography or materials
deemed harmful to minors as such terms are defined in
Sections 1024.1 and 1040.75 of this title,
h. causing, exposing, forcing or requiring a child to
look upon sexual acts perf ormed in the presence of the
child for the purpose of sexual gratification, or
i. causing, forcing or requiring a child to touch or fe el
the body or private parts of the child or another
person for the purpose of sexual gratificatio n;
11. 12. "Permit" means to authorize or allow for the car e of a
child by an individual when the person authorizing or allowing su ch
care knows or reasonabl y should know that the child will be placed
at risk of the conduct or harm proscribed by this sect ion;
Req. No. 1438 Page 15 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
12. 13. "Person responsible for a child's health, safety or
welfare" for purposes of this section shall include, but not be
limited to:
a. the parent of the child,
b. the legal guardian of the child,
c. the custodian of the child,
d. the foster parent of the child,
e. a person eighteen (18) years of age or older with whom
the parent of the child cohabitates, who is at least
three (3) years older than the child,
f. any other person eighteen (18) years of age or older
residing in the home of the child , who is at least
three (3) years older than the child,
g. an owner, operator, agent, employ ee or volunteer of a
public or private residential home, institution ,
facility or day treatment program, as defined in
Section 175.20 of Title 10 of the Oklahoma Stat utes,
that the child attended ,
h. an owner, operator, agent, emp loyee or volunteer of a
child care facility, as defined in Section 402 of
Title 10 of the Okla homa Statutes, that the child
attended,
Req. No. 1438 Page 16 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
i. an intimate partner of the parent of the child, as
defined in Section 60.1 of Title 22 of the Oklahoma
Statutes, or
j. a person who has voluntarily accepted responsibility
for the care or supervision of a child;
13. 14. "Sexual intercourse" means the actual penetra tion,
however slight, of the vagina or anus b y the penis; and
14. 15. "Sodomy" means:
a. penetration, however slight , of the mouth of the child
by a penis,
b. penetration, however slight, of the vagina of a person
responsible for a child's health, safety or welfare,
by the mouth of a child,
c. penetration, however slight, of the mouth o f the
person responsible for a child's health, safety or
welfare by the penis of the child , or
d. penetration, however s light, of the vagina of the
child by the mouth of the person responsible for a
child's health, safety or welfare.
SECTION 2. This act shall become effective November 1, 2023.
59-1-1438 JES 1/19/2023 10:10:46 AM