On Sexual Exploitation of Children
| Author: Senator Kyle Estévez (FDP) |An act to prevent sexual exploitation and abuse of children.Chapter I - Definitions
• An "internet session" means a period of time during which an internet user, using a specific internet protocol address, visits or is logged into an internet site for an uninterrupted period of time.
• To "photograph" means to make a print, negative, slide, digital image, motion picture, or videotape. A "photograph" means anything tangible or intangible produced by photographing.
• "Sexually explicit conduct" means actual or simulated:
i) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals;
ii) Penetration of the vagina or rectum by any object;
iii) Masturbation;
iv) Sadomasochistic abuse;
v) Defecation or urination for the purpose of sexual stimulation of the viewer;
vi) Depiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer. For these purposes, it is not necessary that the minor know that he or she is participating in the described conduct, or any aspect of it;
vii) Touching of a person's clothed or unclothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer.
• "Minor" means any person under eighteen years of age.
• "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.Chapter II - Legal Intent
The legislature finds that the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The care of children is a sacred trust and should not be abused by those who seek commercial gain or personal gratification based on the exploitation of children.
The legislature further finds that the protection of children from sexual exploitation can be accomplished without infringing on a constitutionally protected activity. The definition of "sexually explicit conduct" and other operative definitions demarcate a line between protected and prohibited conduct and should not inhibit legitimate scientific, medical, or educational activities. The legislature also further finds that children engaged in sexual conduct for financial compensation are frequently the victims of sexual abuse. It is the intent of the legislature to encourage these children to engage in prevention and intervention services and to hold those who pay to engage in the sexual abuse of children accountable for the trauma they inflict on children.
The legislature further finds that due to the changing nature of technology, offenders are now able to access child pornography in different ways and in increasing quantities. It is the intent of the legislature to ensure that the intentional viewing of and dealing in child pornography over the internet is subject to a criminal penalty without limiting the scope of existing prohibitions on the possession of or dealing in child pornography, including the possession of electronic depictions of a minor engaged in sexually explicit conduct. It is the intent of the legislature to set a different unit of prosecution for the new offense of viewing of depictions of a minor engaged in sexually explicit conduct such that each separate session of intentionally viewing over the internet of visual depictions or images of a minor engaged in sexually explicit conduct constitutes an offense. The importance of protecting children from repeat exploitation in child pornography is based upon the following findings:
(1) Child pornography is not entitled to protection and thus may be prohibited;
(2) The state has a compelling interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain;
(3) Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse;
(4) Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys;Chapter III - Elements of crime
(1) A person is guilty of sexual exploitation of a minor if the person:
(a) Compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance;
(b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; or
(c) Being a parent, legal guardian, or person having custody or control of a minor, permits the minor to engage in sexually explicit conduct, knowing that the conduct will be photographed or part of a live performance.
2)(a) A person commits the crime of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct in the first degree when he or she knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, a visual or printed matter that depicts a minor engaged in sexually explicit conduct.
(b) For the purposes of determining the unit of prosecution under this subsection, each depiction or image of visual or printed matter constitutes a separate offense.
(c) For the purposes of determining the unit of prosecution under this subsection, each incident of sending or bringing into the state one or more depictions or images of visual or printed matter constitutes a separate offense.
(3) A person who intentionally views over the internet visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of viewing depictions of a minor engaged in sexually explicit conduct in the first degree.
(4) For the purposes of determining whether a person intentionally viewed over the internet a visual or printed matter depicting a minor engaged in sexually explicit conduct, the trier of fact shall consider the title, text, and content of the visual or printed matter, as well as the internet history, search terms, thumbnail images, downloading activity, expert computer forensic testimony, number of visual or printed matter depicting minors engaged in sexually explicit conduct, defendant's access to and control over the electronic device and its contents upon which the visual or printed matter was found, or any other relevant evidence. The state must prove beyond a reasonable doubt that the viewing was initiated by the user of the computer where the viewing occurred.
(5) For the purposes of this section, each separate internet session of intentionally viewing over the internet visual or printed matter depicting a minor engaged in sexually explicit conduct constitutes a separate offense.
(6) A person is guilty of commercial sexual abuse of a minor if:
(a) He or she pays a fee to a minor or a third person as compensation for a minor having engaged in sexual conduct with him or her;
(b) He or she pays or agrees to pay a fee to a minor or a third person pursuant to an understanding that in return therefore such minor will engage in sexual conduct with him or her; or
(c) He or she solicits, offers, or requests to engage in sexual conduct with a minor in return for a fee.
(7) In addition to any other penalty, a person guilty of commercial sexual abuse of a minor is subject to any pertinent provisions.
(8) Consent of a minor to the sexual conduct does not constitute a defense to any offense listed in this section.
(9) No person may knowingly allow a minor to be on the premises of a commercial establishment open to the public if there is a live performance containing matter which is erotic material.
(10) Any person who is convicted of violating this section is guilty of a gross misdemeanor.
(11) For the purposes of this section:
(b) "Erotic materials" means live performance:
(i) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest of minors; and
(ii) Which explicitly depicts or describes patently offensive representations or descriptions of sexually explicit conduct; and
(iii) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value for minors.
(d) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.
Isn't this a touchy subject...
