AMENDMENT 400
Section 2G1.2(b) is amended by inserting the following additional subdivision:
"(4) If the defendant was a parent, relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.".
Sections 2G1.2(c) and (d) are transposed and redesignated accordingly.
Section 2G1.2(c) (formerly §2G1.2(d)) is amended in the caption by deleting "Reference" and inserting in lieu thereof "References"; and by inserting the following additional subsections:
"(2) If the offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse, apply §2A3.1 (Criminal Sexual Abuse; Attempt or Assault with the Intent to Commit Criminal Sexual Abuse).
(3) If neither subsection (c)(1) nor (c)(2) is applicable, and the offense did not involve transportation for the purpose of prostitution, apply §2A3.2 (Criminal Sexual Abuse of a Minor or Attempt to Commit Such Acts) or §2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), as appropriate.".
Section 2G1.2(c)(1) (formerly §2G1.2(d)(1)) is amended by deleting "the defendant" immediately before "causing".
The Commentary to §2G1.2 captioned "Application Notes" is amended by renumbering Note 5 as Note 7, and by inserting the following additional notes:
"5. Subsection (b)(4) is intended to have broad application and includes offenses involving a minor entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this adjustment, the court should look to the actual relationship that existed between the defendant and the child and not simply to the legal status of the defendant-child relationship.
6. If the adjustment in subsection (b)(4) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).".
The commentary to §2G1.2 captioned "Application Notes" is amended in Note 1 by deleting "(c)(1)" and inserting in lieu thereof "(d)(1)"; and in Note 7 (formerly Note 5) by deleting "(d)(1)" and inserting in lieu thereof "subsection (c)(1)".
The Commentary to §2G2.1 captioned "Application Notes" is amended in Note 2 by deleting "Specific offense characteristic" and inserting in lieu thereof "Subsection".
The Commentary to §2G2.1 captioned "Application Notes" is amended by deleting:
"3. If specific offense characteristic (b)(2) applies, no adjustment is to be made under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).",
and inserting in lieu thereof:
"3. If the adjustment in subsection (b)(2) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).".
Reason for Amendment: This amendment adds a specific offense characteristic and commentary to provide consistent treatment for similar conduct among the guidelines in this part, conforms the language used in §2G1.2(c)(1) (formerly §2G1.2(d)(1)) with the language used elsewhere in the guidelines, and makes editorial changes to improve clarity. In addition, as statutes referenced to §2G1.2 may be used as "jurisdictional" statutes in some cases to prosecute conduct that is more appropriately covered under other guidelines (§§2A3.1, 2A3.2, and 2A3.4), this amendment inserts cross references as §2G1.2(c)(2) and (3) to provide consistent offense levels in such cases.
Effective Date: The effective date of this amendment is November 1, 1991.