Section 26.05.890. Sexual assault.

   (a) A member of the militia who commits any of the following acts is guilty of sexual assault and may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct:
        (1) a sexual act on another person by
             (A) threatening or placing another person in fear;
             (B) causing bodily harm to another person;
             (C) making a fraudulent representation that the sexual act serves a professional purpose;
             (D) inducing a belief by any artifice, pretense, or concealment that the person is another person;
        (2) a sexual act on another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;
        (3) a sexual act on another person when the other person is incapable of consenting to the sexual act because of
             (A) impairment by a drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person;
             (B) a mental disease or defect or physical disability, and that condition is known or reasonably should be known by the person.
   (b) A member of the militia who commits or causes sexual contact on or by another person, and in doing so would have violated (a) of this section had the sexual contact been a sexual act, is guilty of abusive sexual contact and may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
   (c) In a prosecution under this section, in proving that a person made a threat, it is not necessary to prove that the person actually intended to carry out the threat or had the ability to carry out the threat.
   (d) An accused may raise any applicable defenses available under this chapter or the Rules for Courts-Martial (Manual for Courts-Martial, United States, as amended). Marriage is not a defense for any conduct at issue in a prosecution under this section.
   (e) In a prosecution under this section where consent is at issue,
        (1) an expression of lack of consent through words or conduct means there is no consent; lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear may not constitute consent; a current or previous dating, social, or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue may not constitute consent;
        (2) a sleeping, unconscious, or incompetent person cannot consent; a person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious; a person cannot consent while under threat or fear or under the circumstances described in (a)(1)(C) or (D) of this section;
        (3) lack of consent may be inferred based on the circumstances of the offense; the surrounding circumstances shall be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person's actions.
   (f) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
        (1) "bodily harm" means any offensive touching of another person, however slight, including any nonconsensual sexual act or nonconsensual sexual contact;
        (2) "consent" means a freely given agreement to the conduct at issue by a competent person;
        (3) "force" means the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim;
        (4) "grievous bodily harm" means serious bodily injury, including fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries; grievous bodily harm does not include minor injuries such as a black eye or a bloody nose;
        (5) "sexual act" means
             (A) contact between the penis and the vulva, anus, or mouth; in this subparagraph, contact involving the penis occurs upon penetration, however slight;
             (B) the penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade a person or to arouse or gratify the sexual desire of a person;
        (6) "sexual contact" means
             (A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of a person, with an intent to abuse, humiliate, or degrade a person;
             (B) touching, or causing another person to touch, either directly or through the clothing, a body part of a person, with an intent to arouse or gratify the sexual desire of a person; touching may be accomplished by any part of the body;
        (7) "threatening or placing another person in fear" means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.

Authorities

26.05.900

Notes

References

AS 26.05.900 Other sexual misconduct; indecent viewing, visual recording, or broadcasting.

History

(Sec. 4 ch 55 SLA 2016)