Bill Text: CA SB203 | 2009-2010 | Regular Session | Amended
Bill Title: Child pornography: Internet distribution.
Spectrum: Partisan Bill (Republican 13-0)
Status: (Engrossed - Dead) 2010-08-04 - Set, first hearing. Hearing canceled at the request of author. [SB203 Detail]
Download: California-2009-SB203-Amended.html
BILL NUMBER: SB 203 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 30, 2010
AMENDED IN ASSEMBLY JUNE 7, 2010
AMENDED IN SENATE JANUARY 15, 2010
AMENDED IN SENATE APRIL 16, 2009
AMENDED IN SENATE APRIL 2, 2009
INTRODUCED BY Senator Harman
(Coauthors: Senators Dutton, Huff, Runner, and Walters)
(Coauthors: Assembly Members Bill Berryhill, Conway, DeVore,
Fletcher, Harkey, Jeffries, Niello, and Smyth)
FEBRUARY 23, 2009
An act to amend Section 311 of, and to add Section 312.8 to, the
Penal Code, relating to child pornography.
LEGISLATIVE COUNSEL'S DIGEST
SB 203, as amended, Harman. Child pornography: Internet
distribution.
Existing law includes provisions criminalizing conduct involving
obscene matter and child pornography, including making the
distribution of this material criminal. Existing law defines the term
"distribute" for purposes of crimes relating to obscene matter.
This bill would include within this definition of "distribute"
making available for access or possession over the Internet. The bill
would also provide that nothing in the provisions criminalizing
conduct involving obscene matter and child pornography shall be
construed to permit an action against an interactive computer
service, electronic communication service, or remote computing
service, as defined, that is inconsistent with specified provisions
of federal law. By revising the definition of existing crimes to
expand their application, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 311 of the Penal Code is amended to read:
311. As used in this chapter, the following definitions apply:
(a) "Obscene matter" means matter, taken as a whole, that to the
average person, applying contemporary statewide standards, appeals to
the prurient interest, that, taken as a whole, depicts or describes
sexual conduct in a patently offensive way, and that, taken as a
whole, lacks serious literary, artistic, political, or scientific
value.
(1) If it appears from the nature of the matter or the
circumstances of its dissemination, distribution, or exhibition that
it is designed for clearly defined deviant sexual groups, the appeal
of the matter shall be judged with reference to its intended
recipient group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, sale, dissemination, distribution, or
publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, this evidence is
probative with respect to the nature of the matter and may justify
the conclusion that the matter lacks serious literary, artistic,
political, or scientific value.
(3) In determining whether the matter taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the matter depicts persons under the age of 16
years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(b) "Matter" means any book, magazine, newspaper, or other printed
or written material, or any picture, drawing, photograph, motion
picture, or other pictorial representation, or any statue or other
figure, or any recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment, machine, or
material. "Matter" also means live or recorded telephone messages if
transmitted, disseminated, or distributed as part of a commercial
transaction.
(c) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(d) "Distribute" means transfer possession of, whether with or
without consideration, including making available for access or
possession over the Internet. "Distribute" does not include the
actions of a distribution entity, an
interactive computer service , or Internet service
provider used by another party to distribute the obscene matter or
obscene live conduct.
(e) "Knowingly" means being aware of the character of the matter
or live conduct.
(f) "Exhibit" means show.
(g) "Obscene live conduct" means any physical human body activity,
whether performed or engaged in alone or with other persons,
including but not limited to singing, speaking, dancing, acting,
simulating, or pantomiming, taken as a whole, that to the average
person, applying contemporary statewide standards, appeals to the
prurient interest and is conduct that, taken as a whole, depicts or
describes sexual conduct in a patently offensive way and that, taken
as a whole, lacks serious literary, artistic, political, or
scientific value.
(1) If it appears from the nature of the conduct or the
circumstances of its production, presentation, or exhibition that it
is designed for clearly defined deviant sexual groups, the appeal of
the conduct shall be judged with reference to its intended recipient
group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, advertising, or exhibition indicate that
live conduct is being commercially exploited by the defendant for the
sake of its prurient appeal, that evidence is probative with respect
to the nature of the conduct and may justify the conclusion that the
conduct lacks serious literary, artistic, political, or scientific
value.
(3) In determining whether the live conduct taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the live conduct depicts persons under the age of
16 years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(h) The Legislature expresses its approval of the holding of
People v. Cantrell, 7 Cal.App.4th 523, that, for the purposes of this
chapter, matter that "depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct" is
limited to visual works that depict that conduct.
SEC. 2. Section 312.8 is added to the Penal Code, to read:
312.8. (a) Nothing in this chapter shall be construed to permit
an action against an interactive computer service that is
inconsistent with subsection (c) of Section 230 of Title 47 of the
United States Code, or an action against an electronic communication
service or remote computing service that is inconsistent with Section
2258A or 2258B of Title 18 of the United States Code.
(b) For the purposes of this section, "interactive computer
service" shall be defined as specified in subsection (f) of Section
230 of Title 47 of the United States Code, "electronic communication
service" shall be defined as specified in paragraph (15) of Section
2510 of Title 18 of the United States Code, and "remote computing
service" shall be defined as specified in paragraph (2) of Section
2711 of Title 18 of the United States Code.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
