Bill Text: MI SB0878 | 2017-2018 | 99th Legislature | Engrossed

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Bill Title: Crimes; penalties; crime of aggravated possession of child sexually abusive material; provide increased penalty. Amends sec. 145c of 1931 PA 328 (MCL 750.145c).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2018-03-15 - Referred To Committee On Law And Justice [SB0878 Detail]

Download: Michigan-2017-SB0878-Engrossed.html

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SB-0878, As Passed Senate, March 14, 2018

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 878

 

 

February 27, 2018, Introduced by Senators HERTEL, O'BRIEN, JONES, HORN, KNOLLENBERG, KNEZEK, BIEDA, ROCCA, EMMONS, CONYERS, ANANICH, HOPGOOD, COLBECK, BRANDENBURG, STAMAS, MARLEAU, ZORN, KOWALL, MACGREGOR, SHIRKEY and SCHUITMAKER and referred to the Committee on Judiciary.

 

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending section 145c (MCL 750.145c), as amended by 2012 PA 583.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 145c. (1) As used in this section:

 

     (a) "Access" means to intentionally cause to be viewed by or

 

transmitted to a person.

 

     (b) "Appears to include a child" means that the depiction

 

appears to include, or conveys the impression that it includes, a

 

person who is less than 18 years of age, and the depiction meets

 

either of the following conditions:

 

     (i) It was created using a depiction of any part of an actual

 

person under the age of 18.

 

     (ii) It was not created using a depiction of any part of an

 

actual person under the age of 18, but all of the following apply

 

to that depiction:

 

     (A) The average individual, applying contemporary community

 

standards, would find the depiction, taken as a whole, appeals to

 

the prurient interest.

 

     (B) The reasonable person would find the depiction, taken as a

 

whole, lacks serious literary, artistic, political, or scientific

 

value.

 

     (C) The depiction depicts or describes a listed sexual act in

 

a patently offensive way.

 

     (c) "Child" means a person who is less than 18 years of age,

 

subject to the affirmative defense created in subsection (6) (7)

 

regarding persons emancipated by operation of law.

 

     (d) "Commercial film or photographic print processor" means a

 

person or his or her employee who, for compensation, develops

 

exposed photographic film into movie films, negatives, slides, or

 

prints; makes prints from negatives or slides; or duplicates movie

 

films or videotapes.

 

     (e) "Computer technician" means a person who installs,

 

maintains, troubleshoots, upgrades, or repairs computer hardware,

 

software, personal computer networks, or peripheral equipment.

 

     (f) "Contemporary community standards" means the customary

 

limits of candor and decency in this state at or near the time of

 

the alleged violation of this section.

 

     (g) "Erotic fondling" means touching a person's clothed or

 

unclothed genitals, pubic area, buttocks, or, if the person is

 

female, breasts, or if the person is a child, the developing or

undeveloped breast area, for the purpose of real or simulated overt

 

sexual gratification or stimulation of 1 or more of the persons

 

involved. Erotic fondling does not include physical contact, even

 

if affectionate, that is not for the purpose of real or simulated

 

overt sexual gratification or stimulation of 1 or more of the

 

persons involved.

 

     (h) "Erotic nudity" means the lascivious exhibition of the

 

genital, pubic, or rectal area of any person. As used in this

 

subdivision, "lascivious" means wanton, lewd, and lustful and

 

tending to produce voluptuous or lewd emotions.

 

     (i) "Listed sexual act" means sexual intercourse, erotic

 

fondling, sadomasochistic abuse, masturbation, passive sexual

 

involvement, sexual excitement, or erotic nudity.

 

     (j) "Make" means to bring into existence by copying, shaping,

 

changing, or combining material, and specifically includes, but is

 

not limited to, intentionally creating a reproduction, copy, or

 

print of child sexually abusive material, in whole or part. Make

 

does not include the creation of an identical reproduction or copy

 

of child sexually abusive material within the same digital storage

 

device or the same piece of digital storage media.

 

     (k) "Masturbation" means the real or simulated touching,

 

rubbing, or otherwise stimulating of a person's own clothed or

 

unclothed genitals, pubic area, buttocks, or, if the person is

 

female, breasts, or if the person is a child, the developing or

 

undeveloped breast area, either by manual manipulation or self-

 

induced or with an artificial instrument, for the purpose of real

 

or simulated overt sexual gratification or arousal of the person.

     (l) "Passive sexual involvement" means an act, real or

 

simulated, that exposes another person to or draws another person's

 

attention to an act of sexual intercourse, erotic fondling,

 

sadomasochistic abuse, masturbation, sexual excitement, or erotic

 

nudity because of viewing any of these acts or because of the

 

proximity of the act to that person, for the purpose of real or

 

simulated overt sexual gratification or stimulation of 1 or more of

 

the persons involved.

 

     (m) "Prurient interest" means a shameful or morbid interest in

 

nudity, sex, or excretion.

 

     (n) "Child sexually abusive activity" means a child engaging

 

in a listed sexual act.

 

     (o) "Child sexually abusive material" means any depiction,

 

whether made or produced by electronic, mechanical, or other means,

 

including a developed or undeveloped photograph, picture, film,

 

slide, video, electronic visual image, computer diskette, computer

 

or computer-generated image, or picture, or sound recording which

 

is of a child or appears to include a child engaging in a listed

 

sexual act; a book, magazine, computer, computer storage device, or

 

other visual or print or printable medium containing such a

 

photograph, picture, film, slide, video, electronic visual image,

 

computer, or computer-generated image, or picture, or sound

 

recording; or any reproduction, copy, or print of such a

 

photograph, picture, film, slide, video, electronic visual image,

 

book, magazine, computer, or computer-generated image, or picture,

 

other visual or print or printable medium, or sound recording.

 

     (p) "Sadomasochistic abuse" means either of the following:

     (i) Flagellation or torture, real or simulated, for the

 

purpose of real or simulated sexual stimulation or gratification,

 

by or upon a person.

 

     (ii) The condition, real or simulated, of being fettered,

 

bound, or otherwise physically restrained for sexual stimulation or

 

gratification of a person.

 

     (q) "Sexual excitement" means the condition, real or

 

simulated, of human male or female genitals in a state of real or

 

simulated overt sexual stimulation or arousal.

 

     (r) "Sexual intercourse" means intercourse, real or simulated,

 

whether genital-genital, oral-genital, anal-genital, or oral-anal,

 

whether between persons of the same or opposite sex or between a

 

human and an animal, or with an artificial genital.

 

     (2) A person who persuades, induces, entices, coerces, causes,

 

or knowingly allows a child to engage in a child sexually abusive

 

activity for the purpose of producing any child sexually abusive

 

material, or a person who arranges for, produces, makes, copies,

 

reproduces, or finances, or a person who attempts or prepares or

 

conspires to arrange for, produce, make, copy, reproduce, or

 

finance any child sexually abusive activity or child sexually

 

abusive material for personal, distributional, or other purposes is

 

guilty of a felony, punishable by imprisonment for not more than 20

 

years, or a fine of not more than $100,000.00, or both, if that

 

person knows, has reason to know, or should reasonably be expected

 

to know that the child is a child or that the child sexually

 

abusive material includes a child or that the depiction

 

constituting the child sexually abusive material appears to include

a child, or that person has not taken reasonable precautions to

 

determine the age of the child.

 

     (3) A person who distributes or promotes, or finances the

 

distribution or promotion of, or receives for the purpose of

 

distributing or promoting, or conspires, attempts, or prepares to

 

distribute, receive, finance, or promote any child sexually abusive

 

material or child sexually abusive activity is guilty of a felony,

 

punishable by imprisonment for not more than 7 years, or a fine of

 

not more than $50,000.00, or both, if that person knows, has reason

 

to know, or should reasonably be expected to know that the child is

 

a child or that the child sexually abusive material includes a

 

child or that the depiction constituting the child sexually abusive

 

material appears to include a child, or that person has not taken

 

reasonable precautions to determine the age of the child. This

 

subsection does not apply to the persons described in section 7 of

 

1984 PA 343, MCL 752.367.

 

     (4) A Except as provided in subsection (5), a person who

 

knowingly possesses or knowingly seeks and accesses any child

 

sexually abusive material is guilty of a felony punishable as

 

follows:

 

     (a) Except as provided in subdivision (b), by imprisonment for

 

not more than 4 years or a fine of not more than $10,000.00, or

 

both, if that person knows, has reason to know, or should

 

reasonably be expected to know the child is a child or that the

 

child sexually abusive material includes a child or that the

 

depiction constituting the child sexually abusive material appears

 

to include a child, or that person has not taken reasonable

precautions to determine the age of the child. This subsection

 

     (b) If both of the following apply, by imprisonment for not

 

more than 10 years or a fine of not more than $50,000.00, or both:

 

     (i) The child sexually abusive material depicts a prepubescent

 

child or a child less than 12 years of age, depicts sadomasochistic

 

abuse or bestiality, or includes more than 100 images of child

 

sexually abusive material.

 

     (ii) The person knows, has reason to know, or should

 

reasonably be expected to know that the depicted child is a child

 

or that the sexually abusive material includes a child or that the

 

depiction constituting the child sexually abusive material appears

 

to include a child, or the person has not taken reasonable

 

precautions to determine the age of the depicted child.

 

     (5) Subsection (4) does not apply to any of the following:

 

     (a) A person described in section 7 of 1984 PA 343, MCL

 

752.367, a commercial film or photographic print processor acting

 

under subsection (8), (9), or a computer technician acting under

 

subsection (9).(10).

 

     (b) A police officer acting within the scope of his or her

 

duties as a police officer.

 

     (c) An employee or contract agent of the department of social

 

health and human services acting within the scope of his or her

 

duties as an employee or contract agent.

 

     (d) A judicial officer or judicial employee acting within the

 

scope of his or her duties as a judicial officer or judicial

 

employee.

 

     (e) A party or witness in a criminal or civil proceeding

acting within the scope of that criminal or civil proceeding.

 

     (f) A physician, psychologist, limited license psychologist,

 

professional counselor, or registered nurse licensed under the

 

public health code, 1978 PA 368, MCL 333.1101 to 333.25211, acting

 

within the scope of practice for which he or she is licensed.

 

     (g) A social worker registered in this state under article 15

 

of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838,

 

acting within the scope of practice for which he or she is

 

registered.

 

     (6) (5) Expert testimony as to the age of the child used in a

 

child sexually abusive material or a child sexually abusive

 

activity is admissible as evidence in court and may be a legitimate

 

basis for determining age, if age is not otherwise proven.

 

     (7) (6) It is an affirmative defense to a prosecution under

 

this section that the alleged child is a person who is emancipated

 

by operation of law under section 4(2) of 1968 PA 293, MCL 722.4,

 

as proven by a preponderance of the evidence.

 

     (8) (7) If a defendant in a prosecution under this section

 

proposes to offer in his or her defense evidence to establish that

 

a depiction that appears to include a child was not, in fact,

 

created using a depiction of any part of an actual person under the

 

age of 18, the defendant shall at the time of the arraignment on

 

the information or within 15 days after arraignment but not less

 

than 10 days before the trial of the case, or at such other time as

 

the court directs, file and serve upon the prosecuting attorney of

 

record a notice in writing of his or her intention to offer that

 

defense. The notice shall must contain, as particularly as is known

to the defendant or the defendant's attorney, the names of

 

witnesses to be called in on behalf of the defendant to establish

 

that defense. The defendant's notice shall must include specific

 

information as to the facts that establish that the depiction was

 

not, in fact, created using a depiction of any part of an actual

 

person under the age of 18. Failure to file a timely notice in

 

conformance with this subsection precludes a defendant from

 

offering this defense.

 

     (9) (8) If a commercial film or photographic print processor

 

reports to a law enforcement agency having jurisdiction his or her

 

knowledge or observation, within the scope of his or her

 

professional capacity or employment, of a film, photograph, movie

 

film, videotape, negative, or slide depicting a person that the

 

processor has reason to know or reason to believe is a child

 

engaged in a listed sexual act; furnishes a copy of the film,

 

photograph, movie film, videotape, negative, or slide to a law

 

enforcement agency having jurisdiction; or keeps the film,

 

photograph, movie film, videotape, negative, or slide according to

 

the law enforcement agency's instructions, both of the following

 

shall apply:

 

     (a) The identity of the processor shall must be confidential,

 

subject to disclosure only with his or her consent or by judicial

 

process.

 

     (b) If the processor acted in good faith, he or she shall be

 

is immune from civil liability that might otherwise be incurred by

 

his or her actions. This immunity extends only to acts described in

 

this subsection.

     (10) (9) If a computer technician reports to a law enforcement

 

agency having jurisdiction his or her knowledge or observation,

 

within the scope of his or her professional capacity or employment,

 

of an electronic visual image, computer-generated image or picture

 

or sound recording depicting a person that the computer technician

 

has reason to know or reason to believe is a child engaged in a

 

listed sexual act; furnishes a copy of that image, picture, or

 

sound recording to the law enforcement agency; or keeps the image,

 

picture, or sound recording according to the law enforcement

 

agency's instructions, both of the following apply:

 

     (a) The identity of the computer technician shall must be

 

confidential, subject to disclosure only with his or her consent or

 

by judicial process.

 

     (b) If the computer technician acted in good faith, he or she

 

is immune from civil liability that might otherwise be incurred by

 

his or her actions. This immunity extends only to acts described in

 

this subsection.

 

     (11) (10) In any criminal proceeding regarding an alleged

 

violation or attempted violation of this section, the court shall

 

deny any request by the defendant to copy, photograph, duplicate,

 

or otherwise reproduce any photographic or other pictorial evidence

 

of a child engaging in a listed sexual act if the prosecuting

 

attorney makes that evidence reasonably available to the defendant.

 

Evidence is considered to be reasonably available to the defendant

 

under this subsection if the prosecuting attorney provides an

 

opportunity to the defendant and his or her attorney, and any

 

person the defendant may seek to qualify as an expert witness at

trial, to inspect, view, and examine that evidence at a facility

 

approved by the prosecuting attorney.

 

     (12) (11) This section applies uniformly throughout the state

 

and all political subdivisions and municipalities in the state.

 

     (13) (12) A local municipality or political subdivision shall

 

not enact any ordinance or enforce any existing ordinance, rule, or

 

regulation governing child sexually abusive activity or child

 

sexually abusive material. as defined by this section.

 

     (14) If a person is convicted of a second or subsequent

 

offense under this section, the sentence imposed for a second or

 

subsequent offense is a mandatory minimum sentence of not less than

 

5 years. For the purposes of this section, an offense is considered

 

a second or subsequent offense if, prior to conviction of the

 

second or subsequent offense, the person has been convicted under

 

this section or of another crime involving a sexual offense against

 

a minor, or under a substantially similar statute of another state

 

or of the United States.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.