Connecticut Seal

Substitute House Bill No. 5043

Public Act No. 04-139

AN ACT INCREASING THE PENALTIES FOR ENTICING A MINOR AND IMPORTING OR POSSESSING CHILD PORNOGRAPHY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 53a-90a of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):

(a) A person is guilty of enticing a minor when such person uses an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to engage in prostitution or sexual activity for which the actor may be charged with a criminal offense. For purposes of this section, "interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(b) Enticing a minor is a class [A misdemeanor] D felony for a first offense, a class [D] C felony for a second offense and a class [C] B felony for any subsequent offense.

Sec. 2. Section 53a-193 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

The following definitions are applicable to this section and sections 53a-194 to 53a-210, inclusive, and sections 5 to 7, inclusive, of this act:

(1) Any material or performance is "obscene" if, (A) taken as a whole, it predominantly appeals to the prurient interest, (B) it depicts or describes in a patently offensive way a prohibited sexual act, and (C) taken as a whole, it lacks serious literary, artistic, educational, political or scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or performance or the circumstances of its dissemination to be designed for some other specially susceptible audience. Whether a material or performance is obscene shall be judged by ordinary adults applying contemporary community standards. In applying contemporary community standards, the state of Connecticut is deemed to be the community.

(2) Material or a performance is "obscene as to minors" if it depicts a prohibited sexual act and, taken as a whole, it is harmful to minors. For purposes of this [subsection] subdivision: (A) "Minor" means any person less than seventeen years old as used in section 53a-196 and less than sixteen years old as used in sections 53a-196a [,] and 53a-196b, [and 53a-196c] and (B) "harmful to minors" means that quality of any description or representation, in whatever form, of a prohibited sexual act, when (i) it predominantly appeals to the prurient, shameful or morbid interest of minors, (ii) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) taken as a whole, it lacks serious literary, artistic, educational, political or scientific value for minors.

(3) "Prohibited sexual act" means erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation or sexual intercourse.

(4) "Nude performance" means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state in any play, motion picture, dance or other exhibition performed before an audience.

(5) "Erotic fondling" means touching a person's clothed or unclothed genitals, pubic area, buttocks, or if such person is a female, breast.

(6) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(7) "Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

(8) "Masturbation" means the real or simulated touching, rubbing or otherwise stimulating a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast, either by manual manipulation or with an artificial instrument.

(9) "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.

(10) "Material" means anything tangible which is capable of being used or adapted to arouse prurient, shameful or morbid interest, whether through the medium of reading, observation, sound or in any other manner. Undeveloped photographs, molds, printing plates, and the like, may be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.

(11) "Performance" means any play, motion picture, dance or other exhibition performed before an audience.

(12) "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, advertise, produce, direct or participate in.

(13) "Child pornography" means any [material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act] visual depiction including any photograph, film, videotape, picture or computer-generated image or picture, whether made or produced by electronic, mechanical or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a person under sixteen years of age engaging in sexually explicit conduct, provided whether the subject of a visual depiction was a person under sixteen years of age at the time the visual depiction was created is a question to be decided by the trier of fact.

(14) "Sexually explicit conduct" means actual or simulated (A) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal physical contact, whether between persons of the same or opposite sex, or with an artificial genital, (B) bestiality, (C) masturbation, (D) sadistic or masochistic abuse, or (E) lascivious exhibition of the genitals or pubic area of any person.

(15) "Visual depiction" includes undeveloped film and videotape and data, as defined in subdivision (8) of section 53a-250, that is capable of conversion into a visual image and includes encrypted data.

Sec. 3. Section 53a-196c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(a) A person is guilty of importing child pornography when, with intent to promote child pornography, [he] such person knowingly imports or causes to be imported into the state [any] three or more visual depictions of child pornography of known content and character.

[(b) Importation of two or more copies of any publication containing child pornography shall be prima facie evidence that such publications were imported with intent to promote child pornography. ]

[(c)] (b) Importing child pornography is a class [C] B felony.

Sec. 4. Section 53a-196d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(a) A person is guilty of possessing child pornography [when he] in the first degree when such person knowingly possesses [child pornography, as defined in subdivision (13) of section 53a-193. Possession of a photographic or other visual reproduction of a nude minor for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose shall not be a violation of this subsection] fifty or more visual depictions of child pornography.

(b) Possessing child pornography in the first degree is a class [D] B felony.

Sec. 5. (NEW) (Effective October 1, 2004) (a) A person is guilty of possessing child pornography in the second degree when such person knowingly possesses twenty or more but fewer than fifty visual depictions of child pornography.

(b) Possessing child pornography in the second degree is a class C felony.

Sec. 6. (NEW) (Effective October 1, 2004) (a) A person is guilty of possessing child pornography in the third degree when such person knowingly possesses fewer than twenty visual depictions of child pornography.

(b) Possessing child pornography in the third degree is a class D felony.

Sec. 7. (NEW) (Effective October 1, 2004) In any prosecution for a violation of section 53a-196d of the general statutes, as amended by this act, or section 5 or 6 of this act, it shall be an affirmative defense that (1) the defendant (A) possessed fewer than three visual depictions of child pornography, (B) did not knowingly purchase, procure, solicit or request such visual depictions or knowingly take any other action to cause such visual depictions to come into the defendant's possession, and (C) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof, took reasonable steps to destroy each such visual depiction or reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction, or (2) the defendant possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.

Sec. 8. Subsection (e) of section 53a-29 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(e) The period of probation, unless terminated sooner as provided in section 53a-32, shall be not less than ten years nor more than thirty-five years for conviction of a violation of subdivision (2) of subsection (a) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, [or] 53a-72b, 53a-90a, as amended by this act, 53a-196b, as amended by this act, 53a-196c, as amended by this act, 53a-196d, as amended by this act, or section 5 or 6 of this act.

Sec. 9. Subsection (c) of section 54-56e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(c) This section shall not be applicable: (1) To any person charged with a class A felony, a class B felony, except a violation of section 53a-122 that does not involve the use, attempted use or threatened use of physical force against another person, or a violation of section 14-227a, as amended, subdivision (2) of subsection (a) of section 53-21, section 53a-56b, 53a-60d, 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, [or] 53a-72b, 53a-90a, as amended by this act, or section 5 or 6 of this act, (2) to any person charged with a crime or motor vehicle violation who, as a result of the commission of such crime or motor vehicle violation, causes the death of another person, (3) to any person accused of a family violence crime as defined in section 46b-38a who (A) is eligible for the pretrial family violence education program established under section 46b-38c, as amended, or (B) has previously had the pretrial family violence education program invoked in such person's behalf, (4) to any person charged with a violation of section 21a-267 or 21a-279 who (A) is eligible for the pretrial drug education program established under section 54-56i, or (B) has previously had the pretrial drug education program invoked in such person's behalf, or (5) unless good cause is shown, to any person charged with a class C felony.

Sec. 10. Subdivision (2) of section 54-250 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(2) "Criminal offense against a victim who is a minor" means (A) a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21, subdivision (2) of subsection (a) of section 53a-70, subdivision (1), (4) or (8) of subsection (a) of section 53a-71, subdivision (2) of subsection (a) of section 53a-72a, subdivision (2) of subsection (a) of section 53a-86, subdivision (2) of subsection (a) of section 53a-87, section 53a-90a, as amended by this act, 53a-196a, 53a-196b, 53a-196c, as amended by this act, [or] 53a-196d, as amended by this act, or section 5 or 6 of this act, (B) a violation of section 53a-92, 53a-92a, 53a-94, 53a-94a, 53a-95, 53a-96 or 53a-186, provided the court makes a finding that, at the time of the offense, the victim was under eighteen years of age, (C) a violation of any of the offenses specified in subparagraph (A) or (B) of this subdivision for which a person is criminally liable under section 53a-8, 53a-48 or 53a-49, or (D) a violation of any predecessor statute to any offense specified in subparagraph (A), (B) or (C) of this subdivision the essential elements of which are substantially the same as said offense.

Sec. 11. Subsection (c) of section 19a-343 of the general statutes, as amended by section 4 of public act 03-231, is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):

(c) Three or more arrests, or the issuance of three or more arrest warrants indicating a pattern of criminal activity and not isolated incidents, for the following offenses shall constitute the basis for bringing an action to abate a public nuisance:

(1) Prostitution under section 53a-82, 53a-83, 53a-86, 53a-87, 53a-88 or 53a-89.

(2) Promoting an obscene performance or obscene material under section 53a-196 or 53a-196b, employing a minor in an obscene performance under section 53a-196a, [or importing or possessing child pornography under section 53a-196c or 53a-196d] importing child pornography under section 53a-196c, as amended by this act, possessing child pornography in the first degree under section 53a-196d, as amended by this act, possessing child pornography in the second degree under section 5 of this act or possessing child pornography in the third degree under section 6 of this act.

(3) Transmission of gambling information under section 53-278b or 53-278d or maintaining of a gambling premises under section 53-278e.

(4) Offenses for the sale of controlled substances, possession of controlled substances with intent to sell, or maintaining a drug factory under section 21a-277, 21a-278 or 21a-278a or use of the property by persons possessing controlled substances under section 21a-279. Nothing in this section shall prevent the state from also proceeding against property under section 21a-259 or 54-36h.

(5) Unauthorized sale of alcoholic liquor under section 30-74 or disposing of liquor without a permit under section 30-77, as amended.

(6) Violations of the inciting injury to persons or property law under section 53a-179a.

(7) Maintaining a motor vehicle chop shop under section 14-149a.

(8) Murder or manslaughter under section 53a-54a, 53a-54b, 53a-55, 53a-56 or 53a-56a.

(9) Assault under section 53a-59, 53a-59a, subdivision (1) of subsection (a) of section 53a-60 or section 53a-60a.

(10) Sexual assault under section 53a-70 or 53a-70a.

(11) Fire safety violations under section 29-292, subsection (b) of section 29-310, or section 29-315, as amended, 29-317, 29-320, 29-325, 29-329, 29-337, 29-349 or 29-357, as amended.

Sec. 12. (Effective from passage) (a) A task force is established to study procedures under state and federal law for law enforcement agencies in this state to access subscriber records and the contents of electronic or wire communications maintained by providers of electronic communication service or remote computing service, as those terms are defined in 18 USC 2510 and 18 USC 2711, respectively.

(b) The task force shall be composed of the Commissioner of Public Safety, the Chief State's Attorney, the Chief Public Defender, the Chief Court Administrator, a representative of the Connecticut Police Chiefs Association and the cochairpersons and ranking members of the joint standing committees of the General Assembly having cognizance of matters relating to the judiciary and public safety, or their designees.

(c) Such study shall include, but not be limited to, an examination of (1) the method by which a law enforcement agency may require the disclosure of such information by a provider, such as by service of a search warrant, court order or administrative subpoena, (2) the standard for the issuance of a court order or subpoena, (3) the procedure for notifying a subscriber when the records of such subscriber or the contents of communications made by such subscriber are sought from a provider, (4) the procedure for a provider or a subscriber to move to challenge a subpoena or court order, (5) procedures to ensure that the privacy interests of subscribers in wire and electronic communications are protected, and (6) remedies and sanctions for the unauthorized access to or disclosure of subscriber records or communications.

(d) The task force shall report its findings and recommendations, including any recommendations for legislation, to the joint standing committee on the judiciary not later than January 5, 2005, in accordance with the provisions of section 11-4a of the general statutes.

Sec. 13. (NEW) (Effective from passage) The Commissioner of Correction shall prohibit any person who has been convicted of a crime that requires registration pursuant to chapter 969 of the general statutes from having access to a computer while such person is in the custody of the commissioner and confined in a correctional facility.

Sec. 14. (Effective October 1, 2004) Sections 53a-197 and 53a-198 of the general statutes are repealed.

Approved May 21, 2004