85R6686 KJE-F     By: Watson S.B. No. 967       A BILL TO BE ENTITLED   AN ACT   relating to the prosecution of the offenses of sexual assault and   aggravated sexual assault.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 22.011, Penal Code, is amended by   amending Subsection (b) and adding Subsection (e-1) to read as   follows:          (b)  A sexual assault under Subsection (a)(1) is without the   consent of the other person if:                (1)  the actor compels the other person to submit or   participate by the use of physical force or violence;                (2)  the actor compels the other person to submit or   participate by threatening to use force or violence against the   other person, and the other person believes that the actor has the   present ability to execute the threat;                (3)  the other person has not consented and the actor   knows the other person is:                      (A)  unconscious;                      (B)  [or] physically unable to resist;                      (C)  incapable of appraising the nature of the   act; or                      (D)  unaware that the sexual assault is occurring;                (4)  the actor knows that as a result of mental disease   or defect the other person is at the time of the sexual assault   incapable either of appraising the nature of the act or of resisting   it;                (5)  [the other person has not consented and the actor   knows the other person is unaware that the sexual assault is   occurring;                [(6)     the actor has intentionally impaired the other   person's power to appraise or control the other person's conduct by   administering any substance without the other person's knowledge;                [(7)]  the actor compels the other person to submit or   participate by threatening to use force or violence against any   person, and the other person believes that the actor has the ability   to execute the threat;                (6) [(8)]  the actor is a public servant who coerces   the other person to submit or participate;                (7) [(9)]  the actor is a mental health services   provider or a health care services provider who causes the other   person, who is a patient or former patient of the actor, to submit   or participate by exploiting the other person's emotional   dependency on the actor;                (8) [(10)]  the actor is a clergyman who causes the   other person to submit or participate by exploiting the other   person's emotional dependency on the clergyman in the clergyman's   professional character as spiritual adviser; [or]                (9) [(11)]  the actor is an employee of a facility   where the other person is a resident, unless the employee and   resident are formally or informally married to each other under   Chapter 2, Family Code; or                (10)  the actor knows that the other person has   withdrawn consent to the act and the actor persists in the act after   consent is withdrawn.          (e-1)  It is not a defense to prosecution under this section   that the actor mistakenly believed that the other person consented   to the conduct if a reasonable person should have known or   understood that the other person did not consent to the conduct.          SECTION 2.  Section 22.011(c), Penal Code, is amended by   adding Subdivision (6) to read as follows:                (6)  Notwithstanding Section 1.07, "consent" means   express consent demonstrated through words or actions indicating an   active and voluntary agreement to participate in an act.          SECTION 3.  Section 22.021, Penal Code, is amended by   amending Subsection (a) and adding Subsection (d-1) to read as   follows:          (a)  A person commits an offense:                (1)  if the person:                      (A)  intentionally or knowingly:                            (i)  causes the penetration of the anus or   sexual organ of another person by any means, without that person's   consent;                            (ii)  causes the penetration of the mouth of   another person by the sexual organ of the actor, without that   person's consent; or                            (iii)  causes the sexual organ of another   person, without that person's consent, to contact or penetrate the   mouth, anus, or sexual organ of another person, including the   actor; or                      (B)  intentionally or knowingly:                            (i)  causes the penetration of the anus or   sexual organ of a child by any means;                            (ii)  causes the penetration of the mouth of   a child by the sexual organ of the actor;                            (iii)  causes the sexual organ of a child to   contact or penetrate the mouth, anus, or sexual organ of another   person, including the actor;                            (iv)  causes the anus of a child to contact   the mouth, anus, or sexual organ of another person, including the   actor; or                            (v)  causes the mouth of a child to contact   the anus or sexual organ of another person, including the actor; and                (2)  if:                      (A)  the person:                            (i)  causes serious bodily injury or   attempts to cause the death of the victim or another person in the   course of the same criminal episode;                            (ii)  by acts or words places the victim in   fear that any person will become the victim of an offense under   Section 20A.02(a)(3), (4), (7), or (8) or that death, serious   bodily injury, or kidnapping will be imminently inflicted on any   person;                            (iii)  by acts or words occurring in the   presence of the victim threatens to cause any person to become the   victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or   to cause the death, serious bodily injury, or kidnapping of any   person;                            (iv)  uses or exhibits a deadly weapon in the   course of the same criminal episode;                            (v)  acts in concert with another who   engages in conduct described by Subdivision (1) directed toward the   same victim and occurring during the course of the same criminal   episode; or                            (vi)  with the intent of facilitating the   commission of the offense, administers or provides [flunitrazepam,   otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine] to   the victim of the offense any substance capable of impairing the   victim's ability to appraise the nature of the act or to resist the   act [with the intent of facilitating the commission of the   offense];                      (B)  the victim is younger than 14 years of age; or                      (C)  the victim is an elderly individual or a   disabled individual.          (d-1)  It is not a defense to prosecution under this section   that the actor mistakenly believed that the other person consented   to the conduct if a reasonable person should have known or   understood that the other person did not consent to the conduct.          SECTION 4.  Section 22.021(b), Penal Code, is amended by   adding Subdivision (4) to read as follows:                (4)  Notwithstanding Section 1.07, "consent" has the   meaning assigned by Section 22.011.          SECTION 5.  The change in law made by this Act applies only   to an offense committed on or after the effective date of this Act.   An offense committed before the effective date of this Act is   governed by the law in effect on the date the offense was committed,   and the former law is continued in effect for that purpose. For   purposes of this section, an offense was committed before the   effective date of this Act if any element of the offense occurred   before that date.          SECTION 6.  This Act takes effect September 1, 2017.