THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

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

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 28, 2010   

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

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Consolidated Statutes, further providing for the offense of

sexual abuse of children; and defining the offense of

dissemination of prohibited materials by minors via

electronic communications.

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

<--

Consolidated Statutes, further providing for the offense of

sexual abuse of children; and defining the offense of sexting

by minors.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 6312(f) of Title 18 of the Pennsylvania

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Consolidated Statutes is amended to read:

§ 6312.  Sexual abuse of children.

* * *

(f)  Exceptions.--This section does not apply to any material

that is viewed, possessed, controlled, brought or caused to be

brought into this Commonwealth, or presented for a bona fide

educational, scientific, governmental or judicial purpose. In

addition, this section shall not apply to the dissemination of

prohibited materials by minors via electronic communications as

set forth in section 6321 (relating to dissemination of

prohibited materials by minors via electronic communications).

* * *

Section 2.  Title 18 is amended by adding a section to read:

§ 6321.  Dissemination of prohibited materials by minors via

electronic communications.

(a)  Offense defined.--Any minor who knowingly transmits in

an electronic communication or disseminates a depiction of

himself or herself or of another minor or possesses a depiction

of another minor engaging in sexually explicit conduct commits a

misdemeanor of the second degree.

(b)  Applicability.--This section shall not apply to

electronic communications that depict either sexual intercourse

or deviate sexual intercourse or the penetration, however

slight, of the genitals or anus of a minor with any part of a

person's body, masturbation, sadism or masochism. The

transmission of an electronic communication depicting any of

these acts shall be subject to prosecution under section 6312

(relating to sexual abuse of children).

(c)  Adjudication alternatives.-—As appropriate to the

circumstances, if a minor is accused of violating this section,

consideration shall be given to:

(1)  diversionary alternatives available prior to a law

enforcement officer's submission of a written allegation of

delinquency to the juvenile probation office; or

(2)  adjudicatory alternatives available subsequent to

the submission of a written allegation of delinquency,

including the opportunity for disposition through informal

adjustment as set forth in 42 Pa.C.S. § 6323 (relating to

informal adjustment) or entry of a consent decree pursuant to

42 Pa.C.S. § 6340 (relating to consent decree).

(d)  Expungement.--For juveniles who fulfill the conditions

of a diversionary alternative pursuant to subsection (c)(1) or

an informal adjustment pursuant to 42 Pa.C.S. § 6323, the

record, including any fingerprints or photographs taken under 42

Pa.C.S. § 6308(c) (relating to law enforcement records), shall

be expunged pursuant to section 9123(a)(1) (relating to juvenile

records). For juveniles who have successfully fulfilled the

conditions of a consent decree pursuant to 42 Pa.C.S. § 6340 the

record, including any fingerprints or photographs taken pursuant

to 42 Pa.C.S. § 6308(c), shall be expunged pursuant to section

9123(a)(2).

(e)  No secure detention or placement authorized.--A minor

alleged to be delinquent solely on the basis of the offense

cannot be detained in a secure facility under 42 Pa.C.S. § 6327

(relating to place of detention). A minor adjudicated delinquent

where this offense is the only offense substantiated under 42

Pa.C.S. § 6341 (relating to adjudication) shall not be subject

to commitment to a secure facility pursuant to a disposition

ordered by the court under 42 Pa.C.S. § 6352 (relating to

disposition of delinquent child).

(f)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Electronic communication."  As defined in section 5702

(relating to definitions).

"Minor."  Any person 13 years of age or older and under 18

years of age.

"Nudity."  As defined in section 5903(e) (relating to obscene

and other sexual materials and performances).

"Sexually explicit conduct."  A lewd or lascivious exhibition

of the minor's genitals, pubic area, breasts or buttocks or

nudity if such nudity is depicted for the purpose of sexual

stimulation or gratification of any person who might view such

depiction.

"Sexual intercourse."  As defined in section 3101 (relating

to definitions).

Section 3.  This act shall take effect in 60 days.

Section 1.  Section 6312(f) of Title 18 of the Pennsylvania

<--

Consolidated Statutes is amended to read:

§ 6312.  Sexual abuse of children.

* * *

(f)  Exceptions.--This section does not apply to any of the

following:

(1)  Any material that is viewed, possessed, controlled,

brought or caused to be brought into this Commonwealth, or

presented, for a bona fide educational, scientific,

governmental or judicial purpose.

(2)  Conduct prohibited under section 6321 (relating to

sexting by minors).

(3)  An individual under the age of 18 years who

knowingly photographs, videotapes, depicts on a computer or

films, or possess or intentionally views a visual depiction

as defined in section 6321 of, himself or herself alone in a

state of simple nudity as defined in section 6321.

* * *

Section 2.  Title 18 is amended by adding a section to read:

§ 6321.  Sexting by minors.

(a)  Misdemeanor offense defined.--Except as provided under

subsection (b), an individual commits a misdemeanor of the

second degree if:

(1)  The individual is a minor and knowingly transmits or

disseminates a visual depiction of himself or herself

engaging in sexually explicit conduct.

(2)  The individual is a minor and does any of the

following involving another minor actually known to the

individual:

(i)  knowingly photographs, videotapes, depicts on a

computer or films the minor engaging in sexually explicit

conduct; or

(ii)  intentionally views or knowingly possesses a

visual depiction which depicts the minor engaging in

sexually explicit conduct.

(b)  Summary offense defined.--An individual commits a

summary offense if:

(1)  The individual is a minor and knowingly transmits a

visual depiction of himself or herself engaging in sexually

explicit conduct when all of the following apply:

(i)  the person intended to receive the visual

depiction is 13 years of age or older and not more than

four years younger nor four years older than the

individual;

(ii)  the person intended to receive the visual

depiction is actually known to the individual; and

(iii)  the individual had a reasonable belief at the

time of the transmission that the intended recipient of

the visual depiction was a willing recipient of the

visual depiction.

(2)  The individual is 19 years of age or younger but at

least 13 years of age and does any of the following involving

a minor who is actually known to the individual and not more

than four years younger or four years older than the

individual:

(i)  At the request of the minor, knowingly

photographs, videotapes, depicts on a computer or films

the minor engaging in sexually explicit conduct.

(ii)  Knowingly transmits to the minor, a visual

depiction which depicts the minor engaging in sexually

explicit conduct.

(iii)  Intentionally views or knowingly possesses a

visual depiction which depicts the minor engaging in

sexually explicit conduct and which was:

(A)  transmitted or disseminated to the

individual by the minor; or

(B)  taken, taped, depicted on computer or filmed

by the individual at the request of the minor.

(c)  Applicability.--This section shall not apply to the

following:

(1)  A visual depiction of a minor which depicts the

minor engaged in sexual intercourse, deviate sexual

intercourse, masturbation, sadism or masochism or which

depicts the penetration, however slight, of the minor's

genitals or anus with any part of another individual's body.

The photographing, videotaping, filming or depicting on a

computer of a visual depiction which depicts any of these

acts involving a minor or the transmission or dissemination

of a visual depiction which depicts any of these acts

involving a minor shall be subject to prosecution under other

provisions of this title, including section 6312.

(2)  A visual depiction of a minor which depicts the

minor engaging in sexually explicit conduct if the

photograph, videotape, film or depiction was taken, made,

produced, used or intended to be used for or in furtherance

of a commercial purpose. The photographing, videotaping,

filming or depicting on a computer of a visual depiction

which depicts a minor engaging in sexually explicit conduct

for or in furtherance of a commercial purpose or the

transmission or dissemination of a visual depiction which

depicts a minor engaging in sexually explicit conduct for or

in furtherance of a commercial purpose shall be subject to

prosecution under other provisions of this title, including

section 6312.

(3)  An individual under 18 years of age who views or

possesses a visual depiction of himself or herself which

depicts the individual engaging in sexually explicit conduct,

if no one else is depicted in the photograph, videotape,

depiction or film.

(4)  A visual depiction of a minor who is married which

depicts only the minor, the minor's spouse, or both, engaging

in sexually explicit conduct or simple nudity and which is

possessed or viewed only by the minor, the minor's spouse, or

both, or which is transmitted only between the minor and the

minor's spouse.

(d)  Adjudication alternatives.--As appropriate to the

circumstances, if an individual is accused of committing an

offense under this section, consideration shall be given to:

(1)  diversionary alternatives available prior to a law

enforcement officer's submission of a written allegation of

delinquency to the juvenile probation office or the issuance

of a summary citation;

(2)  adjudicatory alternatives available subsequent to

the submission of a written allegation of delinquency,

including the opportunity for disposition through informal

adjustment as set forth in 42 Pa.C.S. § 6323 (relating to

informal adjustment) or entry of a consent decree pursuant to

42 Pa.C.S. § 6340 (relating to consent decree); or

(3)  adjudication alternative programs available under 42

Pa.C.S. § 1520 (relating to adjudication alternative program)

subsequent to the filing or issuance of a summary citation.

(e)  Proceedings.--Any proceeding involving a violation of

this section shall be subject to all of the following:

(1)  42 Pa.C.S. § 6307 (relating to inspection of court

files and records).

(2)  42 Pa.C.S. § 6336(d) (relating to conduct of

hearings) insofar as the subsection relates to the exclusion

of the general public from the proceeding.

(3)  If the person charged is a minor, the charges and

all other documents which are filed shall be captioned and

docketed using only the minor's initials.

(4)  If an individual is charged solely with violations

of subsection (b) and the individual does not participate in

an adjudication alternative offered under subsection (d), the

individual must personally appear at a proceeding before a

magisterial district judge. 

(f)  Expungement.--For an individual who fulfills the

conditions of a diversionary alternative under subsection

(d)(1), an adjudication alternative program under subsection

(d)(3) or an informal adjustment under 42 Pa.C.S. § 6323, the

record, including fingerprints or photographs taken under 42

Pa.C.S. § 6308(c) (relating to law enforcement records), shall

be expunged under section 9123(a)(1) (relating to juvenile

records). For an individual who has successfully fulfilled the

conditions of a consent decree under 42 Pa.C.S. § 6340, the

record, including fingerprints or photographs taken under 42

Pa.C.S. § 6308(c), shall be expunged under section 9123(a)(2).

(g)  No secure detention or placement authorized.--A minor

alleged to be delinquent solely on the basis of an offense

committed under subsection (a) may not be detained in a secure

facility under 42 Pa.C.S. § 6327 (relating to place of

detention). A minor adjudicated delinquent where the offense

under subsection (a) is the only offense substantiated under 42

Pa.C.S. § 6341 (relating to adjudication) shall not be subject

to commitment to a secure facility pursuant to a disposition

ordered by the court under 42 Pa.C.S. § 6352 (relating to

disposition of delinquent child).

(h)  Nature of offense.--An offense under subsection (b)

shall:

(1)  not be a criminal offense of record;

(2)  not be reportable as a criminal act; and

(3)  not be placed on the criminal record of the

offender.

(i)  Seizure and forfeiture of electronic device.--An

electronic device used in violation of this section may be

seized and forfeited to the Commonwealth.

(j)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Actually known."  Possessing firsthand or personal knowledge

about an individual that is acquired through a friendly

relationship with the individual.

"Disseminate."  To cause or make an electronic communication

from one person, place or electronic communication device to two

or more persons, places or electronic communication devices. The

term does not include the posting on or transfer to an Internet

page or website to which the public has or might gain access.

"Electronic communication."  As defined in section 5702

(relating to definitions).

"Electronic communication device."  Any type of instrument,

device, machine or equipment which is capable of transmitting,

acquiring, decrypting or receiving any telephonic, electronic,

data, Internet access, audio, video, microwave or radio

transmissions, signals, communications or services, including

the receipt, acquisition, transmission or decryption of all such

communications, transmissions, signals or services over any

cable television, telephone, satellite, microwave, radio or

wireless distribution system or facility, or any part, accessory

or components thereof, including any computer circuit, security

module, smart card, software, computer chip, electronic

mechanism or other component, accessory or part which is capable

of facilitating the transmission, decryption, acquisition or

reception of all such communications, transmissions, signals or

services.

"Minor."  An individual 13 years of age or older and under 18

years of age.

"Nudity."  As defined in section 5903(e) (relating to obscene

and other sexual materials and performances).

"Sexual intercourse."  As defined in section 3101 (relating

to definitions).

"Sexually explicit conduct."

(1)  Any of the following:

(i)  Lewd or lascivious exhibition of the genitals,

pubic area, breasts or buttocks.

(ii)  Nudity, if the nudity is visually depicted for

the purpose of the sexual stimulation or sexual

gratification of a person who might view the depiction.

(2)  The term shall not include simple nudity.

"Simple nudity."  Nudity which is visually depicted for a

purpose other than the sexual stimulation or the sexual

gratification of a person who might view the visual depiction.

"Transmit."  To cause or make an electronic communication

from one person, place or electronic communication device to

only one other person, place or electronic communication device.

The term shall not include the posting on or transfer to an

Internet page or website to which the public has or might gain

access.

"Visual depiction."  A photograph, videotape, film or

depiction on a computer. The term shall not include a

photograph, videotape, film or depiction on a computer, taken,

taped, filmed, made, produced, used or intended to be used, for

or in furtherance of a commercial purpose or to the transmission

or dissemination of such a visual depiction.

Section 3.  This act shall take effect in 60 days.