Bill Text: MI SB1314 | 2011-2012 | 96th Legislature | Engrossed

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Bill Title: Crimes; obscenity; copying or otherwise reproducing child sexually abusive material; prohibit. Amends sec. 145c of 1931 PA 328 (MCL 750.145c).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2012-11-08 - Referred To Committee On Judiciary [SB1314 Detail]

Download: Michigan-2011-SB1314-Engrossed.html

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SB-1314, As Passed Senate, October 17, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 1314

 

 

September 25, 2012, Introduced by Senator HILDENBRAND 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 2004 PA 478.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

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

 

     (a) "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.

 

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

 

subject to the affirmative defense created in subsection (6)

 

regarding persons emancipated by operation of law.

 

     (c) "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.

 

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

 

maintains, troubleshoots, upgrades, or repairs computer hardware,

 

software, personal computer networks, or peripheral equipment.

 

     (e) "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.

 

     (f) "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.

 

     (g) "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.

 

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

 

fondling, sadomasochistic abuse, masturbation, passive sexual

 

involvement, sexual excitement, or erotic nudity.

 

     (i) "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.

 

     (j) "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.

 

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

 

nudity, sex, or excretion.

 

     (l) "Child sexually abusive activity" means a child engaging in

 

a listed sexual act.

 

     (m) "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.

 

     (n) "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.

 

     (o) "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.

 

     (p) "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 person who knowingly possesses any child sexually

 

abusive material is guilty of a felony punishable 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 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

 

pursuant to under subsection (8), or a computer technician acting

 

pursuant to under subsection (9).

 

     (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

 

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.

 

     (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.

 

     (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.

 

     (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 contain, as particularly as is known to

 

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

 

to be called in behalf of the defendant to establish that defense.

 

The defendant's notice shall 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.

 

     (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 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

 

immune from civil liability that might otherwise be incurred by his

 

Senate Bill No. 1314 as amended October 17, 2012

 

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

 

this subsection.

 

     (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 shall apply:

 

     (a) The identity of the computer technician shall 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

 

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) This section applies uniformly throughout the state and

 

all political subdivisions and municipalities in the state.

 

     (11) A local municipality or political subdivision shall not

 

enact ordinances, nor any ordinance or enforce any existing

 

ordinances, rules, ordinance, rule, or regulations regulation

 

governing child sexually abusive activity or child sexually abusive

 

material as defined by this section.

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