How Tennessee’s New Laws Reshape Sex Crime Cases

A host of new laws are coming into effect in Tennessee on July 1, 2024. Every legislative session turns out new and modified laws as legislators gather together to discuss the needs and requests of their constituents, Tennesseans. It would be unreasonable and quite confusing to cover all of these legal changes in one blog (there are hundreds of them!), so join us in a mini-series of blogs as we break down the content and consequences of Tennessee’s new laws.

The Tennessee General Assembly’s 2024 session had an interesting focus on laws around sex crimes, with many bills being signed into law by Governor Lee to come into effect this year. New laws and modifications of existing laws regarding sex crimes have raised the penalties for sex crimes, criminalized certain actions previously not addressed by the law, and expanded the application of existing laws. This generally means that there are now higher stakes in sex crime cases, and that there could potentially be more sex crime cases brought to court in the near future.

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Newly Illegal Actions in Tennessee

In case you’re worried that you may be violating a new law that previously was not considered a criminal offense, we’ll start by explaining what has been newly criminalized in

AI-Generated Child Pornography (HB2163 911)

Following a trend in Tennessee’s recent lawmaking, the General Assembly has passed sex-crime legislation relative to artificial intelligence. Being such a new technology, legislators are trying to catch up with and stay on top of developments in artificial intelligence to prevent its misuse or abuse. That includes specifying that a defendant may be charged with sexual exploitation of children for possessing, producing, promoting, selling, distributing, or purchasing images created, adapted, or modified by artificial intelligence. All this legal jargon effectively means that if someone buys, sells, makes, or otherwise possesses child pornography generated by artificial intelligence (i.e., not involving real children), they can still be charged with sexual exploitation of a minor, the same charge applied when the material in question did involve an
actual minor.

Leaving a Child Under the Care of a Registered Sex Offender (SB1587 952)

Parents and guardians in Tennessee may no longer knowingly leave their child under the care or supervision of a person who is required to register as a sexual offender. Doing such is a Class A misdemeanor punishable by up to 11 months, 29 days incarceration. This offense is categorized under the section of Tennessee’s criminal offense legislation that addresses offenses against the family, particularly offenses that constitute child neglect, rather than being grouped in with the sex offenses.

Modifying Existing Laws and Increasing Punishments

The punishments for a variety of sex crimes are also being altered as of July 1, 2024. Furthermore, existing laws are being modified to have broader ramifications. These crimes are
those affected by the new legislation:

Child Sexual Abuse and Trafficking Offenses (HB1906 790)

The statute of limitations for bringing actions for illness or injury based on certain child sexual abuse offenses, including trafficking offenses, was extended from the previous 15 years from the date the victim turns eighteen to 30 years from the date the victim turns eighteen. However, this only applies to offenses committed on or after July 1, 2024. This allows victims to bring legal action for child sexual abuse and trafficking for many more years following the commission of the crime than was previously permitted. Such trials that occur decades after a child is allegedly sexually abused can be extremely difficult to litigate due to the durability of evidence and potential concerns over a defendant’s constitutional rights to due process and a speedy trial.

This new law also changes the procedure around the evidence required to be brought by the injured person to corroborate the claim of abuse or trafficking by the alleged perpetrator. While present law already provides that a person bringing such action does not need to establish which specific act in a series of continuing child sexual abuse by the alleged perpetrator caused an illness or injury, this bill establishes that same standard of evidence for trafficking offenses. This may lower the standard of proof at trials for determining when/if trafficking by an alleged perpetrator caused the injury/illness in question. The law furthermore requires the victim to offer “clear and convincing evidence” to corroborate their crimes when action is brought against someone other than the alleged perpetrator in one action, or when the action is brought more than a year from the date the victim turns eighteen. This provision is meant to establish a standard of evidence in cases where a victim is bringing legal action against two or more alleged perpetrators.

Continuous Sexual Abuse of a Child (HB0701 525)

Those convicted of continuous sexual abuse of a child, wherein the offense was committed on or after July 1, 2024, now qualify to be sentenced to community supervision for life, in addition to any other statutorily imposed punishment. Continuous sexual abuse of a child was already a Class A, B, or C felony in Tennessee, depending on the circumstances of the crime (T.C.A. §39-13-518). While the lower end of this range, a Class C felony, is punishable by 3 to 15 years in Tennessee, a Class A felony is punishable by 15 to 60 years. In addition to a punishment sentenced within those applicable ranges, defendants may now also be ordered to remain on community supervision for the rest of their life. That is to say, if a defendant is sentenced to 20 years in prison for committing the Class B Felony of continuous sexual abuse of a child, they may also be ordered to remain on probation for life once released from prison. Probation can be costly and restrictive – however, legislators evidently consider that prevention of future crimes and punishment of past crimes can outweigh a defendant’s interest in not being placed under supervision for the rest of their life.

Indecent Exposure (SB1811 1023 and SB2337 1049)

Indecent exposure was previously a Class A misdemeanor when the victim (i.e., the person subject to the exposure) was under 13 years of age. Now, the crime is a Class A misdemeanor when the victim of indecent exposure is no more than 17 years of age. In cases where the defendant has two or more prior convictions or is a convicted sex offender, however, the offense will be punished as a Class E felony. (SB1811 1023)

Furthermore, indecent exposure will now be punished as a Class E felony, rather than as a class A misdemeanor, when the defendant is confined in a penal institution at the time of the offense and the offense was intended to abuse, harass, torment, or embarrass a guard or staff member. In these cases, a minimum of 14 days of incarceration for each violation will be added to the sentence being served at the time of the indecent exposure offense. (SB2337 1049)

Aggravated Rape (SB2043 844)

Aggravated rape differs statutorily from rape in that there are aggravating circumstances, such as force or bodily injury, that make the crime particularly heinous. This new law adds that a defendant who raped someone while knowing that the defendant is infected with HIV constitutes aggravated rape. Aggravated rape is a Class A Felony in Tennessee.

GPS Monitoring System as a Condition of Bail (HB0689 969)

Defendants who are arrested for a crime against a sexual assault victim may be ordered to wear a global position monitoring system as a condition of bail. This system would be outfitted with the ability to notify the victim if the defendant is near them or their places of habitation and work. The victim may also provide the magistrate with a list of areas from which the victim would like the defendant excluded from going to or near. Violations of the GPS monitor’s conditions, such as going to a prohibited location, could result in a defendant’s bond being revoked. Check out our blog on this topic as it applies to domestic assault arrests!

Death Penalty in Cases involving Rape of a Child (SB1834 951)

This is by far the most headline-grabbing provision from Tennessee’s 2024 legislative session – and for good reason. The state has authorized the death penalty as a punishment for rape of a child, aggravated rape of a child, or especially aggravated rape of a child. The previous statute required that a defendant convicted of raping a child be sentenced to 25 to 60 years in prison, depending on the circumstances of the offense. Beginning on July 1, 2024, this penalty will be much more severe. Those defendants who were a juvenile when the crime was committed will be sentenced to 40 to 60 years, which is the upper end of the previous range. However, defendants who were an adult when the offense was committed must now be sentenced to life in prison (either with or without possibility of parole) or the death penalty. (Note: The Supreme
Court ruled in Roper v. Simmons (2005) that it is unconstitutional to sentence a defendant to death for a crime committed before the defendant was eighteen.)

In the vast majority of cases, only a jury can sentence a defendant to death. Therefore, the bill proceeds to include crimes involving rape of a child to the statutory instructions for jury proceedings in trials for crimes punishable by death. For example, the death penalty may only be imposed when the prosecution has proven beyond reasonable doubt that aggravated circumstances existed within the crime (T.C.A. §39-13-204). Furthermore, whenever the death penalty is imposed and when the judgment has become final in the trial court, the Tennessee Supreme Court must automatically review the conviction and the sentence of death, then either affirm the death sentence or modify the sentence to life imprisonment.

Tennessee’s new law authorizing the death penalty in cases involving the rape of a child has been very quick to stir up controversies. The Supreme Court of the United States held in Kennedy v. Louisiana (2008) that the death penalty is a disproportionate penalty to the crime of rape of a child and thus violates the Eighth Amendment’s protections against cruel and unusual punishment. The court noted, in its Kennedy decision, the “constitutional commitment to decency and restraint” that ought to characterize approaches to sentencing. Due to Tennessee’s new law being in direct contradiction to a previous Supreme Court decision, it is likely to rapidly climb its way to the Supreme Court of the United States. However, for this to be done, a case will have to be brought in trial court wherein a defendant may be sentenced to death for rape of a
child, and then the sentencing at trial court will have to be appealed into the appellate court system, which the Supreme Court heads. Ultimately, Tennessee’s new authorization of the death penalty will almost certainly have to change national precedent if it is to remain in effect.

Second Chances: Expungement and Getting off the Sex Offender Registry

Even in the thick of a dark topic, there is some light at the end of the tunnel. Tennessee has extended the hand of forgiveness to some individuals convicted of aggravated prostitution. Those convicted of aggravated prostitution are now eligible to have their convictions expunged (their criminal record removed from public access), and may request immediate removal from the sex offender registry. Those who are convicted of aggravated prostitution in the future will also no longer be required to register as a sex offender. This shows that the state is changing the way it thinks about and responds to prostitution offenses.

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The law is a lot like the ocean: constantly shifting, and going through periods of calm and periods of unrest. Just like you need a skilled seaman to navigate through the ocean, you need a skilled defense attorney to help you navigate the ever-changing landscape of the law. Best & Brock takes pride in staying up to date on the latest amendments to the law. Our dedicated research and proactive approach could save your future, and even your life. So, if you or a loved one has been charged with a crime, reach out to us at (423) 829-1055 or by filling out our online contact form to set up a FREE consultation with one of our defense attorneys. It’ll be the BEST decision you’ve ever made!