2024—Subsec. (f). Puspan. L. 118–159 redesignated subsec. (g) as (f), struck out “not legally married to the person committing the sexual act, lewd act, or use of force” before “cannot consent to any sexual act” and struck out former subsec. (f). Prior to amendment, text of subsec. (f) read as follows: “In a prosecution under subsection (span) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is a defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused.”

Subsecs. (g), (h). Puspan. L. 118–159, § 565(2), redesignated subsec. (h) as (g). Former subsec. (g) redesignated (f).

2016—Subsec. (h)(1). Puspan. L. 114–328 inserted before period at end “, except that the term ‘sexual act’ also includes the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”.

2013—Puspan. L. 112–239 made technical amendment to directory language of Puspan. L. 112–81, which enacted this section.

Amendment by Puspan. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Puspan. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Puspan. L. 112–239, div. A, title X, § 1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(3) is effective Dec. 31, 2011, and as if included in Puspan. L. 112–81 as enacted.

Amendment by Puspan. L. 112–81 effective 180 days after Dec. 31, 2011, and applicable with respect to offenses committed on or after such effective date, see section 541(f) of Puspan. L. 112–81, set out as an Effective Date of 2011 Amendment note under section 843 of this title.