SENATE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GROVE, AUMENT, BAKER, BOBACK, CARROLL, CLYMER, D. COSTA, CUTLER, DALEY, GEIST, KAUFFMAN, MILLER, MOUL, O'NEILL, REICHLEY, ROCK, SAYLOR, MURT AND CALTAGIRONE, FEBRUARY 24, 2011

SENATOR CORMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS AMENDED, OCTOBER 16, 2012   

AN ACT

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

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by minors providing for the offense of transmission of

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sexually explicit images by minor.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

Consolidated Statutes is amended to read:

§ 6312.  Sexual abuse of children.

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(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). transmission of sexually explicit images

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by minor), unless the conduct is specifically excluded by

section 6321(d).

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

views, photographs, videotapes, depicts on a computer or

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films or possesses or intentionally views a visual depiction

as defined in section 6321 of himself alone in a state of

simple nudity as defined in section 6321.

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

§ 6321.  Sexting by minors.

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(a)  Offense defined.--A minor who knowingly transmits an

electronic communication or disseminates a depiction of himself 

or 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 the

following:

(1)  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 other

provisions of this title, including section 6312 (relating to

sexual abuse of children).

(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 the 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.

(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.

(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 into 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

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 an offense

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

placement 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).

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

electronic device used in violation of this section may be

seized and forfeited to the Commonwealth.

(g)  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."  A 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).

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

to definitions).

"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. The term does not include simple nudity.

§ 6321.  Transmission of sexually explicit images by minor.

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(a)  Summary offense.--Except as provided in section 6312

(relating to sexual abuse of children), a minor commits a

summary offense when the minor:

(1)  Knowingly transmits, distributes, publishes or

disseminates an electronic communication containing a

sexually explicit image of himself.

(2)  Knowingly possesses or knowingly views a sexually

explicit image of a minor who is 12 years of age or older.

(b)  Misdemeanor of the third degree.--Except as provided in

section 6312, a minor commits a misdemeanor of the third degree

when the minor knowingly transmits, distributes, publishes or

disseminates an electronic communication containing a sexually

explicit image of another minor who is 12 years of age or older.

(c)  Misdemeanor of the second degree.--Except as provided in

section 6312, a minor commits a misdemeanor of the second degree

when, with the intent to coerce, intimidate, torment, harass or

otherwise cause emotional distress to another minor, the minor:

(1)  makes a visual depiction of any minor in a state of

nudity without the knowledge and consent of the depicted

minor; or

(2)  transmits, distributes, publishes or disseminates a

visual depiction of any minor in a state of nudity without

the knowledge and consent of the depicted minor.

(d)  Application of section.--This section shall not apply to

the following:

(1)  Conduct that involves images that depict sexual

intercourse, deviate sexual intercourse or penetration,

however slight, of the genitals or anus of a minor,

masturbation, sadism, masochism or bestiality.

(2)  Conduct that involves a sexually explicit image of a

minor, if the image was taken, made, used or intended to be

used for or in furtherance of a commercial purpose.

(e)  Forfeiture.--Any electronic communication device used in

violation of this section shall be subject to forfeiture to the

Commonwealth and no property right shall exist in it.

(f)  Diversionary program.--The magisterial district judge or

any judicial authority with jurisdiction over the violation may

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refer shall give first consideration to referring a person

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charged with a violation of subsection (a) to a diversionary

program under 42 Pa.C.S. § 1520 (relating to adjudication

alternative program) and the Pennsylvania Rules of Criminal

Procedure. As part of the diversionary program, the magisterial

district judge or any judicial authority with jurisdiction over

the violation may order the person to participate in an

educational program which includes the legal and nonlegal

consequences of sharing sexually explicit images. If the person

successfully completes the diversionary program, the person's

records of the charge of violating subsection (a) shall be

expunged as provided for under Pa.R.C.P. No. 320 (relating to

expungement upon successful completion of ARD program).

(g)  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:

"Disseminate."  To cause or make an electronic or actual

communication from one person, place or electronic communication

device to two or more other persons, places or electronic

communication devices.

"Distribute."  To deliver or pass out.

"Electronic communication."  As defined in section 5702

(relating to definitions).

"Knowingly possesses."  The deliberate, purposeful, voluntary

possession of a sexually explicit image of another minor who is

12 years of age or older. The term shall not include the

accidental or inadvertent possession of such an image.

"Knowingly views."  The deliberate, purposeful, voluntary

viewing of a sexually explicit image of another minor who is 12

years of age or older. The term shall not include the accidental

or inadvertent viewing of such an image.

"Minor."  An individual under 18 years of age.

"Nudity."  The showing of the human male or female genitals,

pubic area or buttocks with less than a fully opaque covering,

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.

"Publish."  To issue for distribution.

"Sexually explicit image."  A lewd or lascivious visual

depiction of a minor's genitals, pubic area, breast or buttocks

or nudity, if such nudity is depicted for the purpose of sexual

stimulation or gratification of any person who might view such

nudity.

"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.

"Visual depiction."  A representation by picture, including,

but not limited to, a photograph, videotape, film or computer

image.

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