PA 10-191—sHB 5533

Judiciary Committee

AN ACT CONCERNING SEXTING

SUMMARY: This act creates a new class A misdemeanor offense (see Table on Penalties) for certain acts of sexting or other electronic transmission or possession of child pornography by persons 13 to 15 years old (for transmission) or 13 to 17 years old (for possession). Under the act, the new class A misdemeanor addresses conduct of a recipient who must be 13 to 17 years old, and a sender who must be (1) 13 to 15 years old and (2) the subject of the depiction.

It provides that in a prosecution for felony possession of child pornography, it is an affirmative defense that the defendant's acts, if proven, would constitute the new class A misdemeanor crime. By law, a defendant must prove an affirmative defense by a preponderance of the evidence.

By law, persons convicted of felony possession of child pornography may have to register as sex offenders. Such persons also face potentially longer periods of probation than those convicted for most other felonies. These conditions would not apply to persons convicted of the misdemeanor offense created by the act.

EFFECTIVE DATE: October 1, 2010

NEW MISDEMEANOR CRIME

The act punishes the following conduct by a recipient who is 13 to 17 years old and a sender who is (1) 13 to 15 years old and (2) the subject of the depiction:

1. the knowing possession of a visual depiction of child pornography that the subject of the depiction knowingly and voluntarily sent to the recipient by an electronic device capable of transmitting a visual depiction, including a (a) cellular or wireless phone, (b) computer, or (c) computer network and computer system; and

2. the knowing and voluntary transmission, by means of such an electronic device, of a visual depiction of child pornography.

DEFINITIONS

The act applies to the new misdemeanor crime the same definitions of “child pornography” and “visual depiction” as apply for the existing law on felony child pornography and related offenses.

“Child pornography” means any visual depiction, including any photograph, film, videotape, picture, or computer-generated image or picture, produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production involves the use of a person under age 16 engaging in sexually explicit conduct. Whether the subject of the depiction was under age 16 at the time it was created is a question to be decided by the trier of fact.

“Visual depiction” includes undeveloped film and videotape and information of any kind in any form, including computer software, capable of conversion into a visual image, and includes encrypted data.

AFFIRMATIVE DEFENSES

Under the act, the existing affirmative defenses for felony possession of child pornography also apply to the misdemeanor offense created by the act.

It is an affirmative defense if the defendant:

1. possessed fewer than three visual depictions of child pornography;

2. did not knowingly (a) purchase, procure, solicit, or request the depictions or (b) take any other action to cause them to come into his or her possession; and

3. promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any depiction or copy, (a) took reasonable steps to destroy each depiction or (b) reported the matter to a law enforcement agency and gave that agency access to each depiction.

It is also an affirmative defense if the defendant possessed a visual depiction of a nude person under age 16 for a bona fide artistic, medical, scientific, educational, religious, governmental, or judicial purpose.

BACKGROUND

Possession of Child Pornography

The felony offense of child pornography is divided into three degrees, depending on the number of visual images that the defendant knowingly possesses. The offenses range from a class B to a class D felony.

OLR Tracking: JO: SC: CR: ts