532.045 Persons prohibited from probation or postincarceration supervision -- Procedure when probation or postincarceration supervision not prohibited. (1) As used in this section: (a) (b) (c) "Position of authority" means but is not limited to the position occupied by a biological parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational staff, or volunteer who is an adult, adult athletic manager, adult coach, teacher, classified school employee, certified school employee, counselor, staff, or volunteer for either a residential treatment facility or a detention facility as defined in KRS 520.010(4), staff or volunteer with a youth services organization, religious leader, health-care provider, or employer; "Position of special trust" means a position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the minor; and "Substantial sexual conduct" means penetration of the vagina or rectum by the penis of the offender or the victim, by any foreign object; oral copulation; or masturbation of either the minor or the offender. (2) Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.050, 510.080, 529.040, 529.070, 529.100 where the offense involves commercial sexual activity, 530.020, 531.310, 531.320, or 531.370, or criminal attempt to commit any of these offenses under KRS 506.010, and, who meets one (1) or more of the following criteria: (a) A person who commits any of the offenses enumerated in this subsection against a minor by the use of force, violence, duress, menace, or threat of bodily harm; (b) A person who, in committing any of the offenses enumerated in this subsection, caused bodily injury to the minor; (c) A person convicted of any of the offenses enumerated in this subsection and who was a stranger to the minor or made friends with the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection, unless the defendant honestly and reasonably believed the minor was eighteen (18) years old or older; (d) A person who used a dangerous instrument or deadly weapon against a minor during the commission of any of the offenses enumerated in this subsection; (e) A person convicted of any of the offenses enumerated in this subsection and who has had a prior conviction of assaulting a minor, with intent to commit an act constituting any of the offenses enumerated in this subsection; (f) A person convicted of kidnapping a minor in violation of the Kentucky Penal Code and who kidnapped the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection; (g) A person who is convicted of committing any of the offenses enumerated in this subsection on more than one (1) minor at the same time or in the same course of conduct; (h) A person who in committing any of the offenses enumerated in this subsection has substantial sexual conduct with a minor under the age of fourteen (14) years; or (i) A person who occupies a position of special trust and commits an act of substantial sexual conduct. (3) Nothing in this section shall be construed to prohibit the additional period of five (5) years' postincarceration supervision required by KRS 532.043. If a person is not otherwise prohibited from obtaining probation or conditional discharge under subsection (2), the court may impose on the person a period of probation or conditional discharge. Probation or conditional discharge shall not be granted until the court is in receipt of the comprehensive sex offender presentence evaluation of the offender performed by an approved provider, as defined in KRS 17.500 or the Department of Corrections. The court shall use the comprehensive sex offender presentence evaluation in determining the appropriateness of probation or conditional discharge. (4) If the court grants probation or conditional discharge, the offender shall be required, as a condition of probation or conditional discharge, to successfully complete a community-based sexual offender treatment program operated or approved by the Department of Corrections or the Sex Offender Risk Assessment Advisory Board. (5) The offender shall pay for any evaluation or treatment required pursuant to this section up to the offender's ability to pay but not more than the actual cost of the comprehensive sex offender presentence evaluation or treatment. (6) Failure to successfully complete the sexual offender treatment program constitutes grounds for the revocation of probation or conditional discharge. (7) The comprehensive sex offender presentence evaluation and all communications relative to the comprehensive sex offender presentence evaluation and treatment of a sexual offender shall fall under the provisions of KRS 197.440. The comprehensive sex offender presentence evaluation shall be filed under seal and shall not be made a part of the court record subject to review in appellate proceedings and shall not be made available to the public. (8) Before imposing sentence, the court shall advise the defendant or his counsel of the contents and conclusions of any comprehensive sex offender presentence evaluation performed pursuant to this section and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel and the Commonwealth's attorney a copy of the comprehensive sex offender presentence evaluation. It shall not be necessary to disclose the sources of confidential information. (9) To the extent that this section conflicts with KRS 533.010, this section shall take precedence. Effective: July 15, 2014 History: Amended 2014 Ky. Acts ch. 132, sec. 22, effective July 15, 2014. -- Amended 2011 Ky. Acts ch. 2, sec. 94, effective June 8, 2011. -- Amended 2007 Ky. Acts ch. 19, sec. 16, effective June 26, 2007. -- Amended 2006 Ky. Acts ch. 182, sec. 43, effective July 12, 2006. -- Amended 2000 Ky. Acts ch. 401, sec. 9, effective July 14, 2000; and ch. 401, sec. 34, effective April 11, 2000. -- Amended 1998 Ky. Acts ch. 293, sec. 1, effective July 15, 1998 and ch. 606, sec. 118, effective July 15, 1998. -- Amended 1996 Ky. Acts ch. 300, sec. 3, effective July 15, 1996. -- Amended 1994 Ky. Acts ch. 94, sec. 3, effective July 15, 1994. -- Created 1984 Ky. Acts ch. 382, sec. 23, effective July 13, 1984.