Text of AL SB 147 (2009)

Page 0 SB147 1 105571-1 2 By Senator Mitchem 3 RFD: Children, Youth Affairs, and Human Resources 4 First Read: 03-FEB-09 5 Page 1 105571-1:n:01/07/2009:FC/tan LRS2009-47 1 2 3 4 5 6 7 SYNOPSIS: Under existing law, a defendant is required 8 to be age 19 or over to be charged with the crime 9 of solicitation of a child by a computer and the 10 child is required to be less than 16 years of age 11 and three years younger than the defendant. The law 12 also does not specify that a person being solicited 13 may actually be an adult undercover officer. 14 This bill would delete the requirement that 15 a defendant be age 19 or over to commit the crime 16 and would specify that a defendant may be charged 17 with the crime of solicitation of a child by a 18 computer if the defendant believes that the person 19 being solicited is a child who is less than 16 20 years of age and at least three years younger than 21 the defendant which may include an adult undercover 22 officer. 23 Under existing law, it is a crime to 24 transmit obscene material to a child by computer. 25 The age of the child is not specified. 26 Page 2 This bill would provide that it is a crime 1 to transmit obscene material by a cell phone or 2 similar personal communication device data to a 3 child under the age of 17, would further define the 4 obscene materials covered, and would specify that 5 the transmission may be to a person the defendant 6 believes to be a child under the age of 17. 7 Under existing law, it is a crime to possess 8 and possess with intent to disseminate obscene 9 matter containing visual depiction of persons under 10 17 years of age involved in obscene acts. 11 This bill would provide that any person who 12 knowingly possesses any obscene matter that 13 contains a digital, computer generated, or animated 14 visual depiction of a person under the age of 17 15 years engaged in any act of sado-masochistic abuse, 16 sexual intercourse, sexual excitement, 17 masturbation, breast nudity, genital nudity, or 18 other sexual conduct would be guilty of a Class C 19 felony. 20 This bill would provide that any person 21 knowingly possessing three or more visual 22 depictions, material, matters, articles, or things 23 coming within the provision of Section 13A-12-192 24 of the Code of Alabama 1975, is prima facie 25 evidence of the violation of that section. 26 Page 3 Under existing law, a parent or guardian who 1 permits a child to engage in the production of 2 obscene matter containing a visual depiction of the 3 child commits a Class A felony. 4 This bill would expand the existing law to 5 include any person who exercises control over a 6 child and who transfers custody or control of the 7 child to a third party for an obscene purpose 8 including portraying the child in a visual 9 depiction containing obscene matter. This bill 10 would also make it a crime for any person to obtain 11 custody or control of a child for an obscene 12 purpose including portraying the child in a visual 13 depiction containing obscene matter. 14 Under existing law, equipment, materials, 15 vehicles, or other property used in the commercial 16 production, transportation, or dissemination of 17 obscene matter concerning a person under the age of 18 17 years is subject to forfeiture. 19 This bill would delete the reference to 20 "commercial" property to provide further for the 21 forfeiture of any article, equipment, machine, 22 materials, matter, vehicle, or other thing 23 whatsoever including computer equipment or supplies 24 used in the possession or trafficking in obscene 25 matter, or the solicitation of a child by computer 26 or transmitting obscene material, intellectual 27 Page 4 property, or acts to a person under the age of 17 1 years. 2 Existing law does not provide a distinction 3 between a person who possesses more than 20 images 4 of child pornography. 5 This bill would make it a separate crime of 6 trafficking in obscene matter depicting children 7 for a person to possess 20 or more images of child 8 pornography or a motion picture or video of child 9 pornography under certain conditions. 10 This bill would provide for graduated 11 punishment. This bill would provide for a mandatory 12 minimum term of imprisonment for a person convicted 13 of trafficking in obscene matter. 14 Under existing law, electronic harassment or 15 bullying is not a crime. 16 This bill would create the crime of 17 electronic harassment or bullying and provide 18 penalties. 19 This bill would specifically provide that in 20 any criminal proceeding, any property or material 21 that constitutes child pornography would remain in 22 the care, custody, and control of either the state 23 or the district or circuit court having 24 jurisdiction of the case. 25 This bill would provide for immunity from 26 civil liability with certain exceptions for any 27 Page 5 person who reports to a law enforcement officer 1 information concerning child pornography, 2 information on on-line computer solicitation of 3 minors, or any other information that would be 4 harmful to a minor. 5 Amendment 621 of the Constitution of Alabama 6 of 1901, now appearing as Section 111.05 of the 7 Official Recompilation of the Constitution of 8 Alabama of 1901, as amended, prohibits a general 9 law whose purpose or effect would be to require a 10 new or increased expenditure of local funds from 11 becoming effective with regard to a local 12 governmental entity without enactment by a 2/3 vote 13 unless: it comes within one of a number of 14 specified exceptions; it is approved by the 15 affected entity; or the Legislature appropriates 16 funds, or provides a local source of revenue, to 17 the entity for the purpose. The purpose or effect 18 of this bill would be to require a new or increased 19 expenditure of local funds within the meaning of 20 the amendment. However, the bill does not require 21 approval of a local governmental entity or 22 enactment by a 2/3 vote to become effective because 23 it comes within one of the specified exceptions 24 contained in the amendment. 25 26 A BILL 27 Page 6 TO BE ENTITLED 1 AN ACT 2 3 To establish the Alabama Child Cyber Exploitation 4 Act; to amend Section 13A-6-110 of the Code of Alabama 1975, 5 to further provide for the offense of soliciting a child for 6 sexual conduct by computer and to remove the age limit for a 7 person who solicits a child by a computer; to provide that a 8 person could be charged with solicitation or attempted 9 solicitation of a child if the person utilizes a computer, 10 computer on-line service, Internet service, or local bulletin 11 board service to commit a sex act with a child; to further 12 provide that the crime may be committed if the defendant 13 believes the person being solicited is a child; to amend 14 Section 13A-6-111 of the Code of Alabama 1975, relating to the 15 transmitting of obscene material to a child by computer; to 16 provide that it is a crime to transmit obscene material to a 17 child by a cell phone or similar personal communication 18 device; to amend Section 13A-12-192 of the Code of Alabama 19 1975, relating to the possession and possession with intent to 20 disseminate any obscene matter containing a visual depiction 21 of a person under 17 years of age involved in obscene acts; to 22 provide that any person who knowingly possesses any obscene 23 matter that contains a digital, computer generated, or 24 animated visual depiction of a person under the age of 17 25 years engaged in any act of sado-masochistic abuse, sexual 26 intercourse, sexual excitement, masturbation, breast nudity, 27 Page 7 genital nudity, or other sexual conduct shall be guilty of a 1 Class C felony; to provide that a person knowingly possessing 2 three or more visual depictions, materials, matters, articles, 3 or things coming within the provisions of Section 13A-12-192 4 of the Code of Alabama 1975, is prima facie evidence of the 5 violation of that section; to amend Section 13A-12-196 of the 6 Code of Alabama 1975, to prohibit a person from transferring 7 custody or control of a child to another person for an obscene 8 purpose including portraying the child in the production of 9 obscene matter containing a visual depiction of the child; to 10 prohibit any person from obtaining custody or control of a 11 child for an obscene purpose including portraying the child in 12 the production of obscene matter containing a visual depiction 13 of the child; to provide penalties for violation; to amend 14 Section 13A-12-198 of the Code of Alabama 1975, relating to 15 the forfeiture provisions under the Alabama Child Pornography 16 Act; to delete the requirement that property forfeited be 17 commercial property and to provide further for the forfeiture 18 of any article, equipment, machine, materials, matter, 19 vehicle, or other thing whatsoever, including computer 20 equipment or supplies used in the possession and trafficking 21 in obscene matter, or the solicitation of a child by computer, 22 intellectual property or acts, or transmitting obscene 23 materials to a person under the age of 17 years; to make it a 24 crime for a person to traffic in obscene matter involving 25 children; to provide for graduated punishment; to provide for 26 a mandatory minimum term of imprisonment for a person 27 Page 8 convicted of trafficking in obscene matter; to provide that 1 possession by any person of 20 or more visual depictions, 2 material, matters, articles, or things or a motion picture or 3 video under certain conditions coming within the provision of 4 Section 13A-12-192 of the Code of Alabama 1975, is prima facie 5 evidence of the violation of that section; to create the crime 6 of electronic harassment or bullying and to provide penalties; 7 to provide for custody of the evidence pending trial; to 8 provide for immunity for civil liability with certain 9 exceptions for a person who reports to a law enforcement 10 officer information concerning child pornography, information 11 on on-line computer solicitation of minors, or any other 12 information that would be harmful to a minor; and in 13 connection therewith would have as its purpose or effect the 14 requirement of a new or increased expenditure of local funds 15 within the meaning of Amendment 621 of the Constitution of 16 Alabama of 1901, now appearing as Section 111.05 of the 17 Official Recompilation of the Constitution of Alabama of 1901, 18 as amended. 19 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: 20 Section 1. This act shall be known and cited as the 21 Alabama Child Cyber Exploitation Act. 22 Section 2. Sections 13A-6-110, 13A-6-111, 23 13A-12-192, 13A-12-196, and 13A-12-198 of the Code of Alabama 24 1975, are amended to read as follows: 25 "§13A-6-110. 26 Page 9 "(a) In addition to the provisions of Section 1 13A-6-69, a person is guilty of solicitation of a child by a 2 computer if the person is 19 years of age or older and the 3 person knowingly, with the intent to commit an unlawful sex 4 act, entices, induces, persuades, seduces, prevails, advises, 5 coerces, or orders, or attempts to entice, induce, persuade, 6 seduce, prevail, advise, coerce, lure, or order, by means of a 7 computer, on-line service, Internet service, local Internet 8 bulletin board service, or any other electronic communication 9 device, a child who is less than 16 years of age and at least 10 three years younger than the defendant, or another person 11 believed by the defendant to be a child who is less than 16 12 years of age and at least three years younger than the 13 defendant, to meet with the defendant or any other person for 14 the purpose of engaging in sexual intercourse, sodomy, or to 15 engage in a sexual performance, obscene sexual performance, or 16 sexual conduct for his or her benefit or for the benefit of 17 another. 18 "(b) For purposes of determining jurisdiction, the 19 offense is committed in this state if the transmission that 20 constitutes the offense either originates in this state or is 21 received in this state. 22 "(c) A person charged under this section shall be 23 tried as an adult, and the record of the proceeding shall not 24 be sealed nor subject to expungement. 25 "(c) The fact that an undercover operative or law 26 enforcement officer was involved in the detection and 27 Page 10 investigation of an offense under this section, or the fact 1 that an adult undercover operative represented himself or 2 herself to be a child less than 16 years of age, does not 3 constitute a defense to a prosecution under this section. 4 "(d) Solicitation of a child by computer is a Class 5 B felony. 6 "§13A-6-111. 7 "(a) A person is guilty of transmitting obscene 8 material to a child if the person transmits, by means of any 9 cell phone, computer communication system, or any similar 10 communication device allowing the input, output, examination, 11 or transfer of computer programs, data, or images from one 12 cell phone, computer, or any similar personal communication 13 device to another, material which, in whole or in part, 14 describes or depicts actual or simulated nudity, digitally 15 illustrated or animated nudity, sexual conduct, digitally 16 illustrated or animated sexual conduct, or sadomasochistic 17 abuse, to a person that is a child under the age of 17, or 18 that a reasonable person given all the circumstances would 19 believe to be a child under 17 years of age for the purpose of 20 initiating or engaging in sexual acts with the child. 21 "(b) For purposes of determining jurisdiction, the 22 offense is committed in this state if the transmission that 23 constitutes the offense either originates in this state or is 24 received in this state. 25 Page 11 "(c) A person charged under this section shall be 1 tried as an adult and the record of the proceeding shall not 2 be sealed nor subject to expungement. 3 "(d) The fact that an undercover operative or law 4 enforcement officer was involved in the detection and 5 investigation of an offense under this section, or the fact 6 that an adult undercover operative represented himself or 7 herself to be a child under 17 years of age, shall not 8 constitute a defense to a prosecution under this section. 9 "(d)(e) Transmitting obscene material of engaging in 10 sexual intercourse, sodomy, or to engage in a sexual 11 performance, obscene sexual performance, or sexual conduct for 12 his or her benefit to a child is a Class B felony. 13 "§13A-12-192. 14 "(a) Any person who knowingly possesses with intent 15 to disseminate any obscene matter that contains a visual 16 depiction of a person under the age of 17 years engaged in any 17 act of sado-masochistic abuse, sexual intercourse, sexual 18 excitement, masturbation, breast nudity, genital nudity, or 19 other sexual conduct shall be guilty of a Class B felony. 20 Possession of three or more copies of the same visual 21 depiction contained in obscene matter is prima facie evidence 22 of possession with intent to disseminate the same. 23 "(b) Any person who knowingly possesses any obscene 24 matter that contains a visual depiction of a person under the 25 age of 17 years engaged in any act of sado-masochistic abuse, 26 sexual intercourse, sexual excitement, masturbation, genital 27 Page 12 nudity, or other sexual conduct shall be guilty of a Class C 1 felony. 2 "(c) Any person who knowingly possesses obscene 3 matter that contains a digital, computer generated, or 4 animated visual depiction of a person under the age of 17 5 years engaged in any act of sado-masochistic abuse, sexual 6 intercourse, sexual excitement, masturbation, breast nudity, 7 genital nudity, or other sexual conduct shall be guilty of a 8 Class C felony. 9 "(d) The possession by any person of three or more 10 visual depictions, materials, matters, articles, or things 11 coming within the provisions of this section is prima facie 12 evidence of the violation of this section. 13 "§13A-12-196. 14 "(a) Any parent or guardian person who knowingly 15 permits or allows their any child, ward, or dependent under 16 the age of 17 years to engage in the production of any obscene 17 matter containing a visual depiction of such child, ward, or 18 dependent under the age of 17 years engaged in any act of 19 sado-masochistic abuse, sexual excitement, masturbation, 20 breast nudity, genital nudity, or other sexual conduct shall 21 be guilty of a Class A felony. 22 "(b) Any person who obtains custody or control of a 23 child for the purpose of furthering participation of the child 24 in an act of sado-masochistic abuse, sexual intercourse, 25 sexual excitement, masturbation, genital nudity, or other 26 Page 13 sexual conduct defined in Section 13A-12-190, of the Code of 1 Alabama 1975, is guilty of a Class A felony. 2 "§13A-12-198. 3 "Any article, equipment, machine, materials, matter, 4 vehicle or other thing whatsoever used in the commercial 5 possession, production, transportation, dissemination, 6 display, or storage of any obscene matter displaying or 7 depicting a person under the age of 17 years engaged in any of 8 the obscene acts described in Sections 13A-12-191, 13A-12-192, 9 13A-12-196, and 13A-12-197 , trafficking in obscene matter, or 10 the solicitation of a child by computer or transmitting 11 obscene material to a child by computer described in Sections 12 13A-6-110 and 13A-6-111, shall be contraband and shall be 13 forfeited to the State of Alabama. The manner, method, and 14 procedure for the forfeiture and condemnation of such thing 15 shall be the same as that provided by law for the confiscation 16 or condemnation or forfeiture of automobiles, conveyances, or 17 vehicles in which alcoholic beverages are illegally 18 transported." 19 Section 3. (a)(1) A person is guilty of trafficking 20 in obscene matter if he or she knowingly films, prints, 21 records, photographs, sells, delivers, brings into this state, 22 and who is knowingly in actual or constructive possession, or 23 otherwise produces, in excess of 20 separate images, of any 24 obscene matter that contains a visual reproduction of a person 25 under the age of 17 years engaged in any act of 26 Page 14 sado-masochistic abuse, sexual intercourse, sexual excitement, 1 masturbation, genital nudity, or other sexual content. 2 (2) The images need not be of separate individual 3 persons under the age of 17 years, but may be of the same 4 individual or duplicates of the same image. 5 (3) A single moving picture, video image, digital 6 moving picture, or motion picture of any obscene matter that 7 contains a visual reproduction of a person under the age of 17 8 years engaged in any act of sado-masochistic abuse, sexual 9 intercourse, sexual excitement, masturbation, genital nudity, 10 or other sexual content, for the purposes of this section, 11 shall be the equivalent of 10 single individual images. 12 (4) The knowing possession by any person of 20 or 13 more visual depictions, materials, matters, articles, or 14 things coming within the provisions of this section is prima 15 facie evidence of the violation of this section. 16 (b)(1) Trafficking in obscene matter is a Class A 17 felony. 18 (2) A person who has one or more felony convictions 19 and is convicted of violating subsection (a) shall be 20 sentenced as provided under Section 13A-5-9, Code of Alabama 21 1975. 22 (c) Notwithstanding the provisions of Chapter 22, 23 Title 15, Code of Alabama 1975, or any other provision of law, 24 with respect to any person who is found to have violated 25 subsection (a), adjudication of guilt or imposition of 26 sentence shall not be suspended, split deferred, or withheld, 27 Page 15 nor shall the person be eligible for any type of parole, 1 probation, work release, supervised intensive restitution 2 program, release because of deduction from sentence for good 3 behavior under corrections incentive time act, or any other 4 program, furlough, pass, leave, or any other type of early, 5 conditional, or temporary release program, nor shall the 6 person be permitted to leave the penitentiary for any reason 7 whatsoever except for necessary court appearances and for 8 necessary medical treatment, prior to serving the mandatory 9 minimum term of imprisonment of not less than five years. 10 Nothing contained in this subsection shall be construed in any 11 way to render any inmate eligible for parole, probation, 12 suspended sentence, furlough, pass, leave, or any type of 13 early, conditional, or temporary release program of any type 14 to which the inmate is not otherwise eligible under other 15 provisions of law. Nor shall anything in this subsection be 16 construed to render any person sentenced to life imprisonment 17 without parole under this or any other act eligible for 18 parole, probation, suspended sentence, furlough, pass, leave, 19 or any type of early, conditional, or temporary release 20 program at any time. 21 (d) Except where the sentence is life imprisonment 22 without parole, the prosecuting attorney may move the 23 sentencing court to reduce the mandatory minimum term of 24 imprisonment for any defendant who provides substantial 25 assistance in the arrest or the conviction of any of his or 26 her accomplices, accessories, coconspirators, principals, or 27 Page 16 other persons engaged in the production or dissemination of 1 obscene matter as defined in this section. The arresting 2 agency shall be given an opportunity to be heard in 3 aggravation or mitigation in reference to any motion. Upon 4 good cause shown, the motion may be filed and heard in camera. 5 The judge hearing the motion may reduce, but not suspend the 6 sentence if he or she finds that the defendant rendered such 7 substantial assistance. Under no circumstances may the judge 8 reduce or suspend the sentence except upon motion of the 9 prosecuting attorney. 10 Section 4. (a) For purposes of this section, the 11 following words have the following meanings: 12 (1) ELECTRONIC. The word includes, but is not 13 limited to, communication via electronic mail, such as 14 Internet-based communication, pager services, cell phones, and 15 electronic text messaging. 16 (2) TRAIT OR CHARACTERISTIC OF THAT PERSON. 17 Includes, but is not limited to, age, color, creed, national 18 origin, race, religion, marital status, sex, sexual 19 orientation, gender identity, physical attributes, physical or 20 mental ability or disability, ancestry, political party 21 preferences, political belief, socio-economic status, family 22 status, or education. 23 (b) A person commits the crime of electronic 24 harassment or bullying if, with intent to harass, annoy, or 25 alarm any person, he or she transmits, posts, displays, or 26 disseminates, by or through an electronic communication 27 Page 17 device, radio, computer, Internet, or other similar means, to 1 any person, a communication, image, or information, which is 2 based on the actual or perceived "traits or characteristics of 3 that person", which creates any of the following conditions: 4 (1) Places that person in reasonable fear or harm to 5 his or her person or property. 6 (2) Has a substantial and detrimental effect on that 7 person's physical or mental health. 8 (3) Has the effect of substantially interfering with 9 that person's academic performance, employment, or other 10 community activities or responsibilities. 11 (4) Has the effect of substantially interfering with 12 that person's ability to participate in or benefit from any 13 academic, professional, or community based services, 14 activities, or privileges. 15 (5) Has the effect of causing substantial 16 embarrassment or humiliation within an academic or 17 professional community. 18 (c) Electronic harassment is a Class A misdemeanor. 19 Section 5. (a) In any criminal proceeding, any 20 property or material that is alleged to be obscene matter as 21 defined by Section 13A-12-192, Code of Alabama 1975, shall 22 remain in the care, custody, and control of either the state 23 or the circuit or district court having jurisdiction of the 24 case. 25 (b) (1) Notwithstanding Rule 16 of the Alabama Rules 26 of Criminal Procedure, in any criminal proceeding, a court 27 Page 18 shall deny any request by the defendant to copy, photograph, 1 duplicate, or otherwise reproduce any property or material 2 that is alleged to be obscene matter as defined under Section 3 13A-12-192, Code of Alabama 1975, provided the state or the 4 court makes the property or material reasonably available to 5 the defendant. 6 (2) For the purposes of subdivision (1), property or 7 material shall be deemed to be reasonably available to the 8 defendant if the state or the court provides ample opportunity 9 at a state facility or at the court for inspection, viewing, 10 and examination of the property or material by the defendant, 11 his or her attorney, and any individual the defendant may seek 12 to furnish expert testimony at trial. 13 Section 6. (a) Any person who reports to a law 14 enforcement officer what the person reasonably believes to be 15 child pornography, transmission of child pornography, or any 16 image, information, or data that is harmful to a minor in this 17 state, or the identity or information that would lead to the 18 identity of an individual or individuals engaged in on-line 19 computer solicitation of minors in this state, may not be held 20 civilly liable for the reporting. For purposes of this 21 section, the reporting may include furnishing the law 22 enforcement officer with any image, information, or data that 23 the person reasonably believes to be evidence of child 24 pornography, transmission of child pornography, or any image, 25 information, or data that is harmful to a minor in this state. 26 Page 19 (b) This section does not apply to an action in 1 which a party proves that a person who has reported 2 information to a law enforcement officer subject to subsection 3 (a) engaged in intentional misconduct with willful disregard 4 to a substantial risk of causing injury to the party on whom 5 the report was made. 6 Section 7. Although this bill would have as its 7 purpose or effect the requirement of a new or increased 8 expenditure of local funds, the bill is excluded from further 9 requirements and application under Amendment 621, now 10 appearing as Section 111.05 of the Official Recompilation of 11 the Constitution of Alabama of 1901, as amended, because the 12 bill defines a new crime or amends the definition of an 13 existing crime. 14 Section 8. This act shall become effective on the 15 first day of the third month following its passage and 16 approval by the Governor, or its otherwise becoming law. 17