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| PRIOR PRINTER'S NOS. 3051, 3372 | PRINTER'S NO. 4008 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY GROVE, QUINN, BAKER, BEAR, BOYD, CARROLL, CLYMER, D. COSTA, CUTLER, GEIST, GINGRICH, GOODMAN, KAUFFMAN, MAHONEY, MOUL, MURT, READSHAW, SIPTROTH, TRUE, WATERS, YOUNGBLOOD, MAJOR AND SAYLOR, JANUARY 5, 2010 |
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| AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 28, 2010 |
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| AN ACT |
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1 | Amending Title 18 (Crimes and Offenses) of the Pennsylvania | <-- |
2 | Consolidated Statutes, further providing for the offense of |
3 | sexual abuse of children; and defining the offense of |
4 | dissemination of prohibited materials by minors via |
5 | electronic communications. |
6 | Amending Title 18 (Crimes and Offenses) of the Pennsylvania | <-- |
7 | Consolidated Statutes, further providing for the offense of |
8 | sexual abuse of children; and defining the offense of sexting |
9 | by minors. |
10 | The General Assembly of the Commonwealth of Pennsylvania |
11 | hereby enacts as follows: |
12 | Section 1. Section 6312(f) of Title 18 of the Pennsylvania | <-- |
13 | Consolidated Statutes is amended to read: |
14 | § 6312. Sexual abuse of children. |
15 | * * * |
16 | (f) Exceptions.--This section does not apply to any material |
17 | that is viewed, possessed, controlled, brought or caused to be |
18 | brought into this Commonwealth, or presented for a bona fide |
19 | educational, scientific, governmental or judicial purpose. In |
20 | addition, this section shall not apply to the dissemination of |
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1 | prohibited materials by minors via electronic communications as |
2 | set forth in section 6321 (relating to dissemination of |
3 | prohibited materials by minors via electronic communications). |
4 | * * * |
5 | Section 2. Title 18 is amended by adding a section to read: |
6 | § 6321. Dissemination of prohibited materials by minors via |
7 | electronic communications. |
8 | (a) Offense defined.--Any minor who knowingly transmits in |
9 | an electronic communication or disseminates a depiction of |
10 | himself or herself or of another minor or possesses a depiction |
11 | of another minor engaging in sexually explicit conduct commits a |
12 | misdemeanor of the second degree. |
13 | (b) Applicability.--This section shall not apply to |
14 | electronic communications that depict either sexual intercourse |
15 | or deviate sexual intercourse or the penetration, however |
16 | slight, of the genitals or anus of a minor with any part of a |
17 | person's body, masturbation, sadism or masochism. The |
18 | transmission of an electronic communication depicting any of |
19 | these acts shall be subject to prosecution under section 6312 |
20 | (relating to sexual abuse of children). |
21 | (c) Adjudication alternatives.-—As appropriate to the |
22 | circumstances, if a minor is accused of violating this section, |
23 | consideration shall be given to: |
24 | (1) diversionary alternatives available prior to a law |
25 | enforcement officer's submission of a written allegation of |
26 | delinquency to the juvenile probation office; or |
27 | (2) adjudicatory alternatives available subsequent to |
28 | the submission of a written allegation of delinquency, |
29 | including the opportunity for disposition through informal |
30 | adjustment as set forth in 42 Pa.C.S. § 6323 (relating to |
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1 | informal adjustment) or entry of a consent decree pursuant to |
2 | 42 Pa.C.S. § 6340 (relating to consent decree). |
3 | (d) Expungement.--For juveniles who fulfill the conditions |
4 | of a diversionary alternative pursuant to subsection (c)(1) or |
5 | an informal adjustment pursuant to 42 Pa.C.S. § 6323, the |
6 | record, including any fingerprints or photographs taken under 42 |
7 | Pa.C.S. § 6308(c) (relating to law enforcement records), shall |
8 | be expunged pursuant to section 9123(a)(1) (relating to juvenile |
9 | records). For juveniles who have successfully fulfilled the |
10 | conditions of a consent decree pursuant to 42 Pa.C.S. § 6340 the |
11 | record, including any fingerprints or photographs taken pursuant |
12 | to 42 Pa.C.S. § 6308(c), shall be expunged pursuant to section |
13 | 9123(a)(2). |
14 | (e) No secure detention or placement authorized.--A minor |
15 | alleged to be delinquent solely on the basis of the offense |
16 | cannot be detained in a secure facility under 42 Pa.C.S. § 6327 |
17 | (relating to place of detention). A minor adjudicated delinquent |
18 | where this offense is the only offense substantiated under 42 |
19 | Pa.C.S. § 6341 (relating to adjudication) shall not be subject |
20 | to commitment to a secure facility pursuant to a disposition |
21 | ordered by the court under 42 Pa.C.S. § 6352 (relating to |
22 | disposition of delinquent child). |
23 | (f) Definitions.--As used in this section, the following |
24 | words and phrases shall have the meanings given to them in this |
25 | subsection unless the context clearly indicates otherwise: |
26 | "Electronic communication." As defined in section 5702 |
27 | (relating to definitions). |
28 | "Minor." Any person 13 years of age or older and under 18 |
29 | years of age. |
30 | "Nudity." As defined in section 5903(e) (relating to obscene |
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1 | and other sexual materials and performances). |
2 | "Sexually explicit conduct." A lewd or lascivious exhibition |
3 | of the minor's genitals, pubic area, breasts or buttocks or |
4 | nudity if such nudity is depicted for the purpose of sexual |
5 | stimulation or gratification of any person who might view such |
6 | depiction. |
7 | "Sexual intercourse." As defined in section 3101 (relating |
8 | to definitions). |
9 | Section 3. This act shall take effect in 60 days. |
10 | Section 1. Section 6312(f) of Title 18 of the Pennsylvania | <-- |
11 | Consolidated Statutes is amended to read: |
12 | § 6312. Sexual abuse of children. |
13 | * * * |
14 | (f) Exceptions.--This section does not apply to any of the |
15 | following: |
16 | (1) Any material that is viewed, possessed, controlled, |
17 | brought or caused to be brought into this Commonwealth, or |
18 | presented, for a bona fide educational, scientific, |
19 | governmental or judicial purpose. |
20 | (2) Conduct prohibited under section 6321 (relating to |
21 | sexting by minors). |
22 | (3) An individual under the age of 18 years who |
23 | knowingly photographs, videotapes, depicts on a computer or |
24 | films, or possess or intentionally views a visual depiction |
25 | as defined in section 6321 of, himself or herself alone in a |
26 | state of simple nudity as defined in section 6321. |
27 | * * * |
28 | Section 2. Title 18 is amended by adding a section to read: |
29 | § 6321. Sexting by minors. |
30 | (a) Misdemeanor offense defined.--Except as provided under |
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1 | subsection (b), an individual commits a misdemeanor of the |
2 | second degree if: |
3 | (1) The individual is a minor and knowingly transmits or |
4 | disseminates a visual depiction of himself or herself |
5 | engaging in sexually explicit conduct. |
6 | (2) The individual is a minor and does any of the |
7 | following involving another minor actually known to the |
8 | individual: |
9 | (i) knowingly photographs, videotapes, depicts on a |
10 | computer or films the minor engaging in sexually explicit |
11 | conduct; or |
12 | (ii) intentionally views or knowingly possesses a |
13 | visual depiction which depicts the minor engaging in |
14 | sexually explicit conduct. |
15 | (b) Summary offense defined.--An individual commits a |
16 | summary offense if: |
17 | (1) The individual is a minor and knowingly transmits a |
18 | visual depiction of himself or herself engaging in sexually |
19 | explicit conduct when all of the following apply: |
20 | (i) the person intended to receive the visual |
21 | depiction is 13 years of age or older and not more than |
22 | four years younger nor four years older than the |
23 | individual; |
24 | (ii) the person intended to receive the visual |
25 | depiction is actually known to the individual; and |
26 | (iii) the individual had a reasonable belief at the |
27 | time of the transmission that the intended recipient of |
28 | the visual depiction was a willing recipient of the |
29 | visual depiction. |
30 | (2) The individual is 19 years of age or younger but at |
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1 | least 13 years of age and does any of the following involving |
2 | a minor who is actually known to the individual and not more |
3 | than four years younger or four years older than the |
4 | individual: |
5 | (i) At the request of the minor, knowingly |
6 | photographs, videotapes, depicts on a computer or films |
7 | the minor engaging in sexually explicit conduct. |
8 | (ii) Knowingly transmits to the minor, a visual |
9 | depiction which depicts the minor engaging in sexually |
10 | explicit conduct. |
11 | (iii) Intentionally views or knowingly possesses a |
12 | visual depiction which depicts the minor engaging in |
13 | sexually explicit conduct and which was: |
14 | (A) transmitted or disseminated to the |
15 | individual by the minor; or |
16 | (B) taken, taped, depicted on computer or filmed |
17 | by the individual at the request of the minor. |
18 | (c) Applicability.--This section shall not apply to the |
19 | following: |
20 | (1) A visual depiction of a minor which depicts the |
21 | minor engaged in sexual intercourse, deviate sexual |
22 | intercourse, masturbation, sadism or masochism or which |
23 | depicts the penetration, however slight, of the minor's |
24 | genitals or anus with any part of another individual's body. |
25 | The photographing, videotaping, filming or depicting on a |
26 | computer of a visual depiction which depicts any of these |
27 | acts involving a minor or the transmission or dissemination |
28 | of a visual depiction which depicts any of these acts |
29 | involving a minor shall be subject to prosecution under other |
30 | provisions of this title, including section 6312. |
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1 | (2) A visual depiction of a minor which depicts the |
2 | minor engaging in sexually explicit conduct if the |
3 | photograph, videotape, film or depiction was taken, made, |
4 | produced, used or intended to be used for or in furtherance |
5 | of a commercial purpose. The photographing, videotaping, |
6 | filming or depicting on a computer of a visual depiction |
7 | which depicts a minor engaging in sexually explicit conduct |
8 | for or in furtherance of a commercial purpose or the |
9 | transmission or dissemination of a visual depiction which |
10 | depicts a minor engaging in sexually explicit conduct for or |
11 | in furtherance of a commercial purpose shall be subject to |
12 | prosecution under other provisions of this title, including |
13 | section 6312. |
14 | (3) An individual under 18 years of age who views or |
15 | possesses a visual depiction of himself or herself which |
16 | depicts the individual engaging in sexually explicit conduct, |
17 | if no one else is depicted in the photograph, videotape, |
18 | depiction or film. |
19 | (4) A visual depiction of a minor who is married which |
20 | depicts only the minor, the minor's spouse, or both, engaging |
21 | in sexually explicit conduct or simple nudity and which is |
22 | possessed or viewed only by the minor, the minor's spouse, or |
23 | both, or which is transmitted only between the minor and the |
24 | minor's spouse. |
25 | (d) Adjudication alternatives.--As appropriate to the |
26 | circumstances, if an individual is accused of committing an |
27 | offense under this section, consideration shall be given to: |
28 | (1) diversionary alternatives available prior to a law |
29 | enforcement officer's submission of a written allegation of |
30 | delinquency to the juvenile probation office or the issuance |
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1 | of a summary citation; |
2 | (2) adjudicatory alternatives available subsequent to |
3 | the submission of a written allegation of delinquency, |
4 | including the opportunity for disposition through informal |
5 | adjustment as set forth in 42 Pa.C.S. § 6323 (relating to |
6 | informal adjustment) or entry of a consent decree pursuant to |
7 | 42 Pa.C.S. § 6340 (relating to consent decree); or |
8 | (3) adjudication alternative programs available under 42 |
9 | Pa.C.S. § 1520 (relating to adjudication alternative program) |
10 | subsequent to the filing or issuance of a summary citation. |
11 | (e) Proceedings.--Any proceeding involving a violation of |
12 | this section shall be subject to all of the following: |
13 | (1) 42 Pa.C.S. § 6307 (relating to inspection of court |
14 | files and records). |
15 | (2) 42 Pa.C.S. § 6336(d) (relating to conduct of |
16 | hearings) insofar as the subsection relates to the exclusion |
17 | of the general public from the proceeding. |
18 | (3) If the person charged is a minor, the charges and |
19 | all other documents which are filed shall be captioned and |
20 | docketed using only the minor's initials. |
21 | (4) If an individual is charged solely with violations |
22 | of subsection (b) and the individual does not participate in |
23 | an adjudication alternative offered under subsection (d), the |
24 | individual must personally appear at a proceeding before a |
25 | magisterial district judge. |
26 | (f) Expungement.--For an individual who fulfills the |
27 | conditions of a diversionary alternative under subsection |
28 | (d)(1), an adjudication alternative program under subsection |
29 | (d)(3) or an informal adjustment under 42 Pa.C.S. § 6323, the |
30 | record, including fingerprints or photographs taken under 42 |
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1 | Pa.C.S. § 6308(c) (relating to law enforcement records), shall |
2 | be expunged under section 9123(a)(1) (relating to juvenile |
3 | records). For an individual who has successfully fulfilled the |
4 | conditions of a consent decree under 42 Pa.C.S. § 6340, the |
5 | record, including fingerprints or photographs taken under 42 |
6 | Pa.C.S. § 6308(c), shall be expunged under section 9123(a)(2). |
7 | (g) No secure detention or placement authorized.--A minor |
8 | alleged to be delinquent solely on the basis of an offense |
9 | committed under subsection (a) may not be detained in a secure |
10 | facility under 42 Pa.C.S. § 6327 (relating to place of |
11 | detention). A minor adjudicated delinquent where the offense |
12 | under subsection (a) is the only offense substantiated under 42 |
13 | Pa.C.S. § 6341 (relating to adjudication) shall not be subject |
14 | to commitment to a secure facility pursuant to a disposition |
15 | ordered by the court under 42 Pa.C.S. § 6352 (relating to |
16 | disposition of delinquent child). |
17 | (h) Nature of offense.--An offense under subsection (b) |
18 | shall: |
19 | (1) not be a criminal offense of record; |
20 | (2) not be reportable as a criminal act; and |
21 | (3) not be placed on the criminal record of the |
22 | offender. |
23 | (i) Seizure and forfeiture of electronic device.--An |
24 | electronic device used in violation of this section may be |
25 | seized and forfeited to the Commonwealth. |
26 | (j) Definitions.--As used in this section, the following |
27 | words and phrases shall have the meanings given to them in this |
28 | subsection unless the context clearly indicates otherwise: |
29 | "Actually known." Possessing firsthand or personal knowledge |
30 | about an individual that is acquired through a friendly |
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1 | relationship with the individual. |
2 | "Disseminate." To cause or make an electronic communication |
3 | from one person, place or electronic communication device to two |
4 | or more persons, places or electronic communication devices. The |
5 | term does not include the posting on or transfer to an Internet |
6 | page or website to which the public has or might gain access. |
7 | "Electronic communication." As defined in section 5702 |
8 | (relating to definitions). |
9 | "Electronic communication device." Any type of instrument, |
10 | device, machine or equipment which is capable of transmitting, |
11 | acquiring, decrypting or receiving any telephonic, electronic, |
12 | data, Internet access, audio, video, microwave or radio |
13 | transmissions, signals, communications or services, including |
14 | the receipt, acquisition, transmission or decryption of all such |
15 | communications, transmissions, signals or services over any |
16 | cable television, telephone, satellite, microwave, radio or |
17 | wireless distribution system or facility, or any part, accessory |
18 | or components thereof, including any computer circuit, security |
19 | module, smart card, software, computer chip, electronic |
20 | mechanism or other component, accessory or part which is capable |
21 | of facilitating the transmission, decryption, acquisition or |
22 | reception of all such communications, transmissions, signals or |
23 | services. |
24 | "Minor." An individual 13 years of age or older and under 18 |
25 | years of age. |
26 | "Nudity." As defined in section 5903(e) (relating to obscene |
27 | and other sexual materials and performances). |
28 | "Sexual intercourse." As defined in section 3101 (relating |
29 | to definitions). |
30 | "Sexually explicit conduct." |
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1 | (1) Any of the following: |
2 | (i) Lewd or lascivious exhibition of the genitals, |
3 | pubic area, breasts or buttocks. |
4 | (ii) Nudity, if the nudity is visually depicted for |
5 | the purpose of the sexual stimulation or sexual |
6 | gratification of a person who might view the depiction. |
7 | (2) The term shall not include simple nudity. |
8 | "Simple nudity." Nudity which is visually depicted for a |
9 | purpose other than the sexual stimulation or the sexual |
10 | gratification of a person who might view the visual depiction. |
11 | "Transmit." To cause or make an electronic communication |
12 | from one person, place or electronic communication device to |
13 | only one other person, place or electronic communication device. |
14 | The term shall not include the posting on or transfer to an |
15 | Internet page or website to which the public has or might gain |
16 | access. |
17 | "Visual depiction." A photograph, videotape, film or |
18 | depiction on a computer. The term shall not include a |
19 | photograph, videotape, film or depiction on a computer, taken, |
20 | taped, filmed, made, produced, used or intended to be used, for |
21 | or in furtherance of a commercial purpose or to the transmission |
22 | or dissemination of such a visual depiction. |
23 | Section 3. This act shall take effect in 60 days. |
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